RAJA SAEED AKRAM KHAN, J. -- This appeal has been filed to assail the correctness of the judgment of Shariat Court dated 25.11.2010 whereby the death sentence awarded to Shaukat Khan, convict-appellant, herein, was confirmed while the appeal filed by Shaukat Khan convict- appellant, herein, for his acquittal and appeal filed by Muhammad Siddique, complainant- respondent, against the acquitted accused were dismissed.
2. The gist of the facts giving rise to this appeal is that on 10.4.2002, a case under Sections 302 and 34, A.P.C. was registered at Police Station Kotli on the complaint of Muhammad Siddique, complainant-respondent, against the convict-appellant. Shaukat Khan, and three other acquitted accused, namely, Amraiz, Skakeel and Imtiaz alias Bala. The allegation levelled in the F.I.R, is that the accused are vagabonds. It was stated that on 10.4.2002 at 6 p.m. the accused were wandering around the house of the complainant, on which his son, Sajid asked them to go away from his house. The accused, with common intention attacked Sajid, Shaukat Khan, accused, armed with .30 bore pistol, fired at Sajid with the intention to kill him which hit him and he fell down, lt was further stated that the accused, Imtiaz alias Bala, who was also armed with .30 bore pistol, also fired. According to the prosecution, the occurrence was witnessed by Mehmood son of Muhammad Yaqoob Ishtiaq son of Muhammad Yaqoob, Ghaffar son of Zulfiqar and others. After the occurrence, the accused ran away. Sajid, deceased, was brought to District Headquarters Hospital, Kotli where he succumbed to the injuries. After completion of investigation,'a challan was presented in the District Criminal Court, Kotli on 9.5.2002. The prosecution produced as many as fifteen witnesses. After conclusion of trial, the District Criminal Court convicted and awarded death sentence as 'Taazir' to Shaukat Khan, convict-appellant herein, under Section 302(b), A.P.C. He was also awarded the sentence of six months' simple imprisonment under Section 13 of the Arms Act, 1965 vide judgment dated 28.8.2006. The co- accused, namely, Amraiz, Shakeel and Imtiaz alias Bala, were acquitted of the charge while giving them benefit of doubt. Against the aforesaid judgment of the District Criminal Court, two appeals were preferred: one by the convict- appellant; herein, for his acquittal while the other by the complainant-respondent against the acquitted accused, whereas a reference was submitted to the Shariat Court for confirmation of death sentence by the District Criminal Court. The Shariat Court, vide its consolidated judgment dated confirmed the death sentence awarded to the convict-appellant, Shaukat Khan, while dismissed both the appeals;- one filed by the convict-appellant, herein, for his acquittal and the other by the complainant-respondent for awarding sentence to the acquitted accused. This judgment of the Shariat Court dated 25.11.2010 is the subject-matter of the instant appeal.
3. At the very outset, Mr. Abdul Majeed Mallick, the learned counsel for the convict-appellant, has stated that he will only argue the case to the extent of quantum of sentence. He has argued that the District Criminal Court failed to appraise the evidence in its true perspective while awarding the death sentence to the convict-appellant which was upheld by the Shariat Court. He submitted that both the Courts below have not taken into consideration that all the three eye-witnesses narrated the prosecution story in different manners which do not support the prosecution case and this fact shows that it was not a pre-planned occurrence. He further argued that there are material contradictions in the statements of the prosecution witnesses which have been overlooked by both the Courts below while awarding the capital punishment. He argued that the statements of the prosecution witnesses are not corroborated by the medical evidence and according to the Medical Officer, one of the injuries is of superficial nature which could not be caused by bullet. He further submitted that the Shariat Court was not justified while rejecting expert's opinion without any sufficient reason. He further stated that both the Courts below erred in law while not taking into consideration that the occurrence did not take place in the manner as narrated by the prosecution witnesses. The whole story is shrouded in mystery. The version adopted by the prosecution witnesses during the trial is concocted and afterthought which is in direct conflict with their previous version recorded under Section 161,'Cr.P.C. and during the course of investigation. The prosecution version put forth in the Court seems to be an improvement to strengthen the case. He submitted that both the Courts below failed to take notice of this important aspect of the case. He further argued that on the strength of same evidence, three accused were found innocent who were acquitted by the Trial Court and their acquittal was also maintained by the Shariat Court, which itself is sufficient proof that the prosecution story was not believable. He submitted that, both the Courts failed to consider that a specific motive was set up by the prosecution but the same was not proved through cogent evidence. He further argued that alternatively, if the prosecution version is accepted as was disclosed during the trial, in that case the occurrence may be a result of sudden and free fight. This aspect of the case has also been ignored by both the Courts below while awarding the death sentence. He lastly argued that all the prosecution witnesses are close relatives of the complainant, therefore, their statements cannot be safely relied upon as they are interested witnesses.
3. On the other hand, Ch. Muhammad Afzal, Advocate, who appeared on behalf of complainant as amicus curiae,, and assisted by Mr. Muzaffar Ali Zafar, Additional Advocate-General, strongly refuted the arguments advanced by the learned counsel for the convict-appellant while arguing that there are concurrent findings of both the Courts below which leave no room to be interfered with by this Court without any cogent reason. He further argued that in criminal case, once a case has been proved with cogent evidence, the death sentence is the normal penalty. The Trial Court has rightly come to the conclusion that the prosecution has proved its case beyond the reasonable doubt and rightly awarded the death sentence which has been upheld by the Shariat Court. He further submitted that both the Courts below have examined the evidence in-depth and rightly came to the conclusion that the case was fully proved against the convict-appellant. He argued that the discrepancies pointed out by the learned counsel for the convict-appellant are minor in nature which should be ignored. Even otherwise, this is a case of direct evidence, therefore, other corroborative piece of evidence can be overlooked. He-argued that at the time of occurrence, the convict-appellant was armed with .30 bore pistol who made two successive shots on the deceased in the result of which he died and this fact itself shows that his intention was to kill the deceased. He further argued that the eye-witnesses are natural and there is nothing on the record that there was any enmity, ill-will or mala fide to falsely implicate the convict- appellant in the case. Even otherwise, the ocular evidence has been admitted by the defence and further corroborated by the incriminating material. He further argued that the prosecution has proved the case with un-rebutted evidence and both the Courts below while delivering the impugned judgments have assigned the valid reasons and attended all the aspects of the case and nothing is left unattended. He lastly prayed for dismissal of the appeal.
4. We have heard the arguments of both the learned counsel for the parties at length perused the record minutely and also gone through the impugned judgments of the Courts below. The learned counsel for the convict- appellant argued that on the basis of evidence furnished by the prosecution, the penalty of death sentence is too harsh. The learned counsel for the convict- appellant stressed that all the eye-witnesses who appeared before the Court are admittedly close relatives of the complainant, therefore, their testimony cannot be believed, It is settled proposition of law that the testimony of the eye- witnesses cannot be discarded merely on the ground of relationship until any malice, mala fide or enmity comes on the record. No doubt, in the case in hand, all the eye-witnesses of the case are closely related with each other, however, no ill-will, enmity or fake implication of the convict-appellant in the case is brought on the record, therefore, the presence of the eye-witnesses on the spot is fully proved who remained consistent with their statements on all material points and their testimony cannot be discarded merely on the ground of relationship. They remained consistent and in line with each other in their statements before the Court, In spite of the cross- examination no dent could be created from the other side and their confidence could not be shaken during cross- examination. Both the Courts have rightly believed the same. In this regard reliance can be placed on a case titled Feroze Khan v. The State [2002 SCM R 99], in which it has been observed as under:-- "....It is settled law by now that interested witness is the. one who has an animus for false charge against the accused. Mere relationship of a witness to the deceased or the relationship of the eye- witnesses inter se is not enough of a reason to discard their testimony because such a witness is necessarily not an interested witness stricto senso. This Court has gone to the extent that even evidence of interested witnesses is always not discarded............"
In another case titled Kashif-ur-Rehman & others v. The State [1996 P.Cr.L.J. 1689], it has been observed as under:-- "Insofar as the question of interested witnesses is concerned that is also well-settled and an interested witness is one who has a motive for falsely implicating an accused person"
Similarly in a case titled Faiz Ahmed v. The State [2008 SCM R 1559], it was observed as under:-- "15. lt is true that the eye-witnesses are related to the deceased but mere relationship of the witnesses inter se and with the deceased is not sufficient to term them as interested witnesses unless it is found that there .was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the appellant in a criminal case, ln the present case, admittedly, there was no previous enmity, ill-will or grudge between the appellant and the complainant party..........."
In an unreported judgment of this Court titled Shafqat Hussain & others v. The State [Criminal Appeal No, 28 of 2003, decided on 13.1.2012], it has been observed as under:--
12. The statement of a witness on account of being interested can only be discarded if it is proved that the witness has ulterior motive of falsely implicating an accused. No illegality came on the record to show that the prosecution witnesses have falsely implicated the accused in the commission of offence. There is no question of false Implication of the accused."
6. Another argument advanced by the learned counsel for the convict-appellant Is that according to medical report, one of the Injuries Is superficial in nature which Itself creates a doubt that it cannot be caused by a fire-arm. We are not convinced with the argument of the learned counsel for the convict-appellant that such-like injury cannot be caused by a bullet. Even otherwise, the medical evidence is one of the corroborative pieces of evidence and where the case is proved by the direct evidence, the same can be overlooked. The seats of the injuries are the same as narrated by the complainant in the F.I.R, which itself has been strongly corroborated by the ocular evidence and the same cannot be disbelieved on* the ground that one of the injuries was superficial in nature.
7. So far as the recovery is concerned, although, according to the memo, of recovery, the specific body number and make of the pistol was given, whereas in the report of Forensic Science Laboratory, no number has been mentioned, It is settled law that the recovery is also one of the corroborative pieces of evidence and as we have observed hereinabove; in the presence of direct evidence the corroborative piece of evidence loses its value. Mere non-mentioning of the number of pistol does not make the whole report doubtful as Forensic Science Laboratory has categorically opined that the crime-empties of .30 bore marked as 01 and C-2 had been fired from the pistol of .30 bore body signed marked as 'PIV.
8. Now we advert to the argument of the learned counsel for the convict-appellant with regard to the quantum of sentence. He heavily relied upon the statements of the eye-witnesses, therefore, we are inclined to examine the statements of eye-witnesses, namely, Muhammad Sjddique, complainant, PW-1, Mehmood Ahmed, PW-2, Ishtiaq PW-3, sons of Zulfiqar, recorded in the Court as well as under Section 161, Cr.P.C, It would be appropriate to reproduce below the F.I.R, and the relevant portions of the statements of the prosecution witnesses. The F.I.R, reads as under:-- {{URDU TEXT}} In his statement recorded under section 161, Cr.P.C Muhammad Siddique, complainant, who appeared as PW-1 stated as under:--- {{URDU TEXT}} In his Court statement, he stated as under:-- {{URDU TEXT}} Mehmood Ahmed Pw-2 son Of Muhammad Yaqoob in his statement recorded under section 161, Cr.P.C. he stated as under:--- {{URDU TEXT}} While appearing before the Court he stated in the following manner:--- Ishtaq son of Muhammad Yaqoob, in his statement recorded under section 161, Cr.P.C., stated as under:-- {{URDU TEXT}} Whereas he got recorded his statement before the Court in the following manner:-- {{URDU TEXT}}
9. After going through the statements of all the eye-witnesses referred to above, we are of the view that all the eye-witnesses in their statements recorded under Section 161, Cr.P.C, and in the Court have not cited true picture of the occurrence. All the witnesses contradict each other as to how the occurrence started, In this situation, we are of the view that the prosecution has not placed the true picture of the occurrence before the Court, i.e,, how the same was occurred. The origin of fight is shrouded in mystery. All the three witnesses told different story. If one is believed the other's version is falsified, In such-like situation the Court can form its independent opinion, therefore, in our estimation the prosecution tried to suppress some material facts from the Court especially; how the occurrence was started. This fact of the case although does not nullify the prosecution story as a whole, however, it can be considered as one of the relevant factor regarding the quantum of sentence. To meet such-like situation, we have to look into the case-law enunciated by the superior judiciary. The Supreme Court of Pakistan in a case reported as Hasnain Shah v. The State [1999 SGMR 1937], has held as under:-- "12. From the circumstances discussed above, it appears that both sides have not come forward with the true story and have tried to suppress their own part in the occurrence and the genesis of the fight is not clear, and it cannot be said with certainty what transpired between the parties prior to the occurrence. The possibility of chance encounter can also not be ruled out.
13. In this view of the matter, we think that though the charge of murder stands proved against Hasnain Shah, appellant, nevertheless, he is entitled to the lesser sentence provided for the offence of murder, and we order accordingly. While maintaining his conviction under Section 302, P.P.C, we alter his sentence from death to imprisonment for life plus the fine as awarded by the learned Trial Court, he shall also be entitled to the benefit of Section 382-B, Cr.P.C."
5. We have come to the conclusion that the correct picture of the occurrence has not been placed before the Court and prosecution tried to suppress that what had happened prior to the occurrence, especially the manner in which the occurrence took place, It cannot be said with certainty that what sort of situation arose before the occurrence in the result of which Sajid, deceased, was murdered. Therefore, we can safely hold that the manner in which the occurrence took place is shrouded in mystery for which the convict-appellant is entitled to the lesser punishment as has been laid down in a case reported as Faiz Ahmed v. The State [2008 SCM R 1559], in which it has been observed as under:--- 17.Learned High Court has appreciate the entire evidence on record by thread bare examination of each piece of evidence supported with reasons based on record. No piece of evidence incriminating in nature produced by the prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective.
18.However, having regard to facts and circumstances of the case, we find that the appellant is in death cell for the last about 14 years. The motive is alien to him and co-accused charged for firing, has been acquitted. Therefore, we are inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice."
Resultantly, we are inclined to partly accept this appeal and convert the sentence of death as Tazir into life imprisonment which would meet the ends of justice. The benefit of Section 382B, Cr.P.C, shall also be available to the convict-appellant.