' ABDUL SAMI KHAN, J.---Noshes along with his co-accused Sarfraz and Zafar Iqbal was tried in case F.I.R. No.144/2005 dated 1-7-2005 registered under sec- tions 302, 109, 34 P.P.C. At Police Station Aroti District Toba Tek Singh and was tried by the learned Additional Sessions Judge, Kamalia, who vide judgment dated 23-6-2007 convicted Nosher-appellant as under:- "Under section 302(b), P. P. C. Sentenced to death with compensation amounting to Rs.50,000 to be paid to the legal heirs of the deceased Muhammad Yasin under section 544-A, Cr. P. C. And. In default thereof to further undergo-six months S.I."
' However, Sarfraz son of Wall Dad and Zafar Iqbal son of Wali Dad, co-accused of the appellant were acquitted.
2. The appellant Nosher has challenged his conviction and sentence through Criminal Appeal No.112-J of 2008 titled as "Nosher v. The State" whereas Murder Reference No.402 of 2007 titled as "State v. Nosher" has also been received from the learned trial Court under section 374, Cr.P.C. For confirmation or otherwise of the death sentence.
3. The prosecution story as set forth by Ranjha complainant (P.W.6) in the F.I.R (Ex.PG/1) is that he is resident of Thatha Bhattian Mauza Dehdi. On the fateful day i.e. 1-7-2005 at about 5-00 p.m., he along with his sons Hameed Aslam, and Muhammad Yasin, Alia son of Sardara and Muhammad Ramzan son of Ghulam Fareed was coming back after offering prayer of "Jumma" at Darbar Sandlianwali, when they reached near Bus Stand at Sandlianwali Road, they saw Sarfraz sitting on a Motorcycle' No FDO-9349 whereas his brother Nosher alias Noshi was standing in front of the shop of vegetable, suddenly Nosher whipped out pistol from the fold of his shalwar and challenged Muhammad Yasin that he will teach him a lesson for disgracing him and fired two straight shots hitting Muhammad Yasin on his chest and flank. According to complainant when they came forward to rescue him, Nosher said that if anyone came forward he will put him to death. When Muhammad Yasin tried to run away, Nosher again fired two shots which hit him on his both arms who fell down. Sarfraz by raising lalkara asked Nosher to finish him, whereupon Nosher fired one more shot hitting on the chest of Muhammad Yasin who succumbed to the injuries at the spot.
According to the complainant the occurrence was also witnessed by Hameed Aslam, Alia and Muhammad Ramzan. After the occurrence the accused escaped from the place of occurrence on Motorcycle by brandishing weapon of offence.
' Motive behind the occurrence as stated by the complainant is that he had demanded the hand of Mst. Pathani sister of Nosher for his son Yasin but they had refused, Muhammad Yasin said that he will not allow to engage her anywhere, so Nosher and Muhammad Yasin grappled due to that grudge both the accused with, the consultation of Zafar Iqbal accused committed the murder of Muhammad Yasin.
4. After recording the statement of the complainant (Exh.PG) Ghulam Abbas S.-1. (P.W.11) visited the place of occurrence (prepared injury statement Exh.PB and inquest report Exh.PC. He also prepared rough site plan of the place of occurrence Exh.PK, escorted the dead body of the deceased to the hospital for autopsy. On 12-7-2005 he arrested Nosher accused and .Recovered Motorcycle Kawasaki No.FDO9349 Vide recovery memo Ex.PE, Pistol .30 bore P-1 and four bullets P-2/1-4 vide recovery memo Ex.PF. On 27-7-2005 he also arrested Sarfraz and Zafar Iqbal accused and after completion of investigation, submitted challan against the accused.
5. P.W.1 Dr.Jamil Safdar on 2-7-2005 had conducted post-mortem examination on the dead body of Muhammad Yasin son of Ranjha brought by Ghulam Abbas S.-I.
(P. W.1.1) at Rural Health Centre Pir Mahal and noted the following injuries:
(1) A fire-arm entrance wound 1.5 can. x 1 c. In. On the front of right chest 10 c.m. Below right nipple.
A bullet was recovered from above the sternly middle part of chest.
(2) A fire-arm entrance wound 1. Can. x 1 can. On front of left chest. Corresponding whole was present on Qamees 5 c. In. Below left clavicle. A fire-arm exit wound 1.5 can. x 2 0.111. On the outer and back of right chest middle part.
(3) A fire-arm entrance wound 1 can. x 1 can. On the outer and back of left lower chest with. Fire- arm exit wound 2 can. x 2 can. On the outer and back of right chest 3 C.111. Below exist of injury No.2.
(4) A fire-arm entrance wound 1 C.171. x 1 can. On the outer part of elbow joint (left). A bullet was recovered from outer part of left elbow joint.
(5) A fire-arm entrance wound 1 c.m. x I can. On the back of right elbow joint; with fire-arm exit wound 1.5 c.I12. X 1.5 c.m. On the inner side of right elbow joint.
(6) 5, According to the doctor cause of death was shock and heamorrhage due to damage of vital organs i.e. Heart, lung, liver developed due to injuries Nos.1, 2, and 3. All the injuries were ante- mortem, caused by fire-arm. Probable time elapsed between the injuries and death was 1/2 hour and between death and post-mortem was about 14 hours. Ex.PA is correct copy of post-mortem examination report.
6. At the inception of the trial, the appellant and his co-accused were formally charged under section 302 read with section 109, 34, P.P.C. They denied the charges claiming trial. The prosecution examined as many as eleven witnesses. The ocular account in this case was given by Ranjha complainant (P.W.6) and Hameed Aslam (P.W.7). Ghulam Abbas S.-I. (P.W.11), the Investigating Officer of the case testified about the investigation conducted by him as stated above. Rest of the evidence is of formal in nature. After placing on record report of Forensic Science Laboratory Ex. PL, report of Chemical Examiner Ex, PM and report of Serologist Ex.PN, the prosecution closed its case.
7. Statements of the accused were recorded under section 342, Cr.P.C. Wherein they opted not to depose on oath as required under section 340(2) Cr.P.C. In reply to the question, why the case is against you and why the P.Ws. Have deposed against you, Nosher (appellant) in his statement recorded under section 342 Cr.P.C. Stated as under:- "Yasin deceased had left no other option for me to offer provocation. At the time of occurrence he took liberty with my sister Mst. Pathani whose life he had already spoiled. He was instrumental in disturbing the peaceful conjugal life of my brother Zafar lqbal and his wife Mst. Rani resulting into divorce by Zafar Iqbal accused. I was alone at the time of occurrence. My co-accused and my brothers Zafar Iqbal and Sarfraz came to know about the occurrence afterwards. None of the P.Ws.
Was present at the spot at the time of occurrence. The .P.Ws: have deposed against me due to the close relationship with the complainant and the deceased."
8. At the end of trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the- parties in support of their respective versions, learned trial Court proceeded convict and sentence the appellant Nosher as mentioned above in paragraph No.1 of the judgment. After hearing the arguments advanced by the learned counsel for both the parties, learned trial Court while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant as stated above. However, Sarfraz son of Wali Dad and Zafar Iqbal son of Wali Dad, co-accused of the appellant were acquitted.
9. Learned counsel for the appellant, in support of this appeal, contends that actually this occurrence is not witnessed by Ranjha complainant (P.W.6) and Hameed Aslam (P.W.7). The complainant Ranjha is father of the deceased whereas. Flameed Aslam P.W.7 is son of the complainant and brother of the deceased, in this way, prosecution evidence is not only interested but also inimical whereas no independent person has supported the prosecution version. The motive for the occurrence is shrouded in mystery, therefore, in the attending circumstances conviction and sentence awarded to the appellant is not warranted in the eyes of law. Learned counsel further submits that although the motive behind the occurrence narrated by the prosecution was a matter of Mst. Pathani but the prosecution has narrated in different way and in this way the prosecution must suffer for not proving the motive. He further argued that Muhammad Yasin deceased was a characterless person who had bad eyes upon Mst. Pathani sister of the appellant and he wanted that Mst. Pathani should elope with him. According to learned counsel on the day of occurrence Mst. Pathani went to Darbar Sindlianwali to offer "Salam" and when she was coming back to her house Muhammad Yasin (deceased) followed her and caught hold from her arm and asked her to elope with him but she refused whereas the appellant Nosher was watching the whole-episode so due to grave and sudden provocation Nosher murdered Muhammad Yasin (deceased) by firing with his pistol. Learned counsel also submits that due to bad character of Muhammad Yasin (deceased) he was stopped from entering the village by a decision of panchayat and due to his bad character lives of four families was ruined. He argued that Mst. Rani was seen in compromising position with Muhammad Yasin (deceased) and for that reason she was divorced by her husband Zafar Iqbal. Learned counsel lastly submitted that the sentence of death inflicted upon the appellant is too harsh and the case of the appellant falls under section 302(c), P.P.C.
10. On the other hand while controverting the arguments of learned counsel for the appellant, learned Deputy Prosecutor-General has argued that judgment of the learned trial Court is based on sound, cogent and sagacious reasoning, it does not require any indulgence by this court. He further maintained that -the prosecution has successfully proved its case to the hilt with the help of testimony of complainant Ranjha (P.W.6) and Hameed Aslam (P.W.7). The statements of both the eye-witnesses is in line with the prosecution version on the material dimensions of this case i.e. Time and place of occurrence, nomination of the accused, -specific attribution of firearm injuries of Nosher appellant to Muhammad Yasin (deceased) duly verified in the post mortem examination report and also corroborated by the recovery of pistol and the empties wedded with .30 bore pistol recovered from the possession of the appellant. He also argued that plea of grave and sudden provocation raised by the appellant is an after thought . Which is not substantiated from the record. The act of appellant is so heinous that he had inflicted five fire-arm injuries upon the vital parts of the body of the deceased and in fact the appellant had made sure that deceased may not survive. He lastly argued that the appellant has admitted the occurrence in his statement under section 342 Cr.P.C. And the role attributed to the present appellant is borne out from the post mortem examination report of the deceased, hence, the sentence of death inflicted upon the appellant by the learned trial Court be confirmed.
11. We have heard the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor-General and scanned the record available on the file of this case with their able assistance and have given our utmost muse to the respective arguments.
12. The incident in the preseht case is admitted. The participation of the appellant in the occurrence is also not denied. However, mode and manner of the occurrence is disputed. As per prosecution Ranjha complainant (P.W.6) along with his A son Hameed Aslam (P.W.7), Muhammad Yasin (deceased), Alia and Muhammad Ramzan was -coming back after offering prayer of "Jumma" at Darbar Sandlianwali, when they reached near Bus Stantl they saw Nosher alias Noshi and his brother Sarfraz standing in front of the shop of vegetable. Nosher whipped out a pistol from the fold of his shalwar and challenged Muhammad Yasin that he would avenge his insult and fired five pistol shots hitting Muhammad Yasin on his chest, flank and both arms who succumbed to the injuries at the spot. The version of the appellant is quite contrary to that advanced by the prosecution viz. The appellant in his statement under section 342, Cr.P.C. Took the stance that on the day of occurrence Mst. Pathani sister of the appellant went to Darbar Sindlianwali to offer "Salam" and when she was coming back to her house Muhammad Yasin (deceased) followed her and in the way stopped her and caught hold from her arm and asked her to elope with him but she refused. According to appellant he was watching the whole episode so due to grave and sudden provocation he murdered Nosher by firing with his pistol. By putting both the stances, one taken by the prosecution and the other taken by the appellant in his statement under section 342 Cr.P.C., In juxtaposition, we are of the view that both the eye-witnesses of the prosecution are consistent in their statements. There is no-contradiction in the statements of both the eye-witnesses on material points. Their statements are fully supported by the medical evidence. F.I.R. In the present case was recorded with promptitude, the medical evidence 'fully substantiates the prosecution case as the injury assigned to the appellant finds mention in the postmortem report and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt. The contention of the learned counsel for the appellant that the evidence of eye- witnesses cannot be believed because they are related to the deceased is without any substance for the simple reason that it is well-settled principle of law that the evidence of a li witness cannot be discarded merely on the ground of relationship, if the evidence of a related witness rings true, he cannot be disbelieved simply because he is related to the concerned party. In this regard reliance is placed on Muhammad Waris v. The State (2008 SCM R 784), wherein it was observed by the Supreme Court of Pakistan as under:- "It is true that Muhammad Antiti P.W. Was a brother of Abbas deceased while Muhammad Hanif P.
W. Was brother-in-law of the two deceased persons but then nothing could be brought on record by the defence which could establish any ill will, animosity or reason which could have led the said two eye-witnesses to falsely implicate the petitioner in the crime in question and to falsely substitute him for the actual offender.
13. As far as defence plea raised by the appellant in his statement under section 342 Cr.P.C. Is concerned, the appellant has not produced any witness in support of his plea and even he did not opt to make such statement on oath while appearing in his defence under section 340(2), Cr.P.C. It was duty of Nosher appellant to prove plea raised by him but he failed to discharge his burden. It is unbelievable that a young lady (Mst. Pathani) would, left her house at 5-00 p.m. In order to offer "Salim" at Darbar all alone which is at a distance of 5 k.m. As such the plea advanced by the appellant is discarded.
14. So far as the submissions of learned counsel for the appellant that case of the appellant falls under section 302(c), P.P.C. Has got no force. In the case in hand as discussed herein above the appellant has acted in a very unusual manner which cannot be ignored. He had inflicted five fire- arm injuries on the vital parts of the body of the deceased such as chest, his right and left flank and both arms. It was by all means Qatl-e-Amd which aspect of the matter has rightly been dilated upon and decided by the learned trial Court. The death was due to damage of vital organs i.e. Heart, lung, liver which developed as a result of injuries/ sustained by Yasin and caused by Nosher appellant. As such the appellant does not deserve any leniency in the quantum of sentence and the learned trial Court was quite justified in awarding death penalty to Nosher appellant which is maintained.
15. Resultantly, Criminal Appeal No.112-J of 2008 (Nosher v. The State) having no merit is dismissed.
Murder Reference No.402 of 2007 seeking confirmation of death sentence awarded to Nosher appellant is answered in affirmative and the death sentence awarded to him by the learned trial is confirmed.