' CH. MUHAMMAD IBRAHIM ZIA, J.---Both the captioned appeals have arisen out of the consolidated judgment of the learned Shariat Court dated 16-2-2007.
2. The precise summary of facts necessary for disposal of these appeals is that a case under section 302, A.P.C. Was registered at police station Dadyal on the complaint of Irfan Hussain. It was reported that on 13-4-2006 at 3-00. p.m. The complainant, his brother Zaffran, mother Anees Akhtar and father Kala Khan were harvesting wheat crop from their field. In the meantime convict- appellant's cattle entered the land and started grazing crops. The complainant's father turned them out. In the meantime Allah Din convict-appellant came there and started abusing him. The father (deceased) forbade and asked him to control his cattle as they used to damage the crop every day. Upon this, the convict-appellant fired at him with .30 bore pistol and caused injury at his abdomen. He fell down and the convict-appellant ran away after committing the offence. The victim succumbed to the injury while in the way to hospital. The occurrence was stated to be witnessed by the complainant, his brother and mother. Motive alleged was an old enmity between the parties.
3. On completion of investigation, the challan was submitted before the Additional District Court of criminal jurisdiction, Dadyal. After conclusion of trial, the trial Court awarded life imprisonment under section 302(b), A.P.C., five years simple imprisonment under section 13 of A.O. 1965, and Rs,100,000 fine under section 544-A of Cr.P.C., to the convict-appellant. Both the parties feeling aggrieved filed appeals before the Shariat Court. The learned single Judge in the Shariat Court through the impugned consolidated judgment only enhanced the amount of fine from Rs,100,000 to Rs,200,000 and rest of the judgment of the trial Court is upheld.
4. Mr. Abdul Majeed Maliick, the learned counsel for the complainant after statement of facts of the case, vehemently argued that the prosecution has proved his case beyond shadow of doubt. There are three direct eye-witnesses of the occurrence. The corroboratory evidence in shape of recovery of crime weapon, empties from the place of occurrence, bullet from the body of the deceased, the postmortem report, fire arms expert's report and other pieces of evidence have fully established the guilt of the accused. According to the principle of law in such like cases the normal penalty is death sentence. In support of his arguments he placed reliance on Muhammad Ramzan's case reported as 1997 PCr.LJ 1522 and 1997 PCr.LJ 1539.
5. Raja Ghazanfar Ali, the learned Advocate-General, fully supported the arguments advanced on behalf of the complainant. He further submitted that the F.I.R. Has been lodged promptly. The accused is nominated in the F.I.R. And it is a broad-daylight incident. The prosecution witnesses and convict appellant are residents of same locality and well acquainted with each other, therefore, neither there is any doubt of identification nor wrong implication of a person. He also added in his arguments that it is now settled principle of law that in presence of direct ocular evidence, the circumstantial evidence has no importance. In the light of the new era trend of principle of law, it is not necessary to prove the motive, thus in this case awarding for capital punishment is appropriate according to the principle of administration of justice.
6. Mr. Khalid Rasheed Chaudhry, the learned counsel for the convict-appellant, argued the case at some length. He summarized his arguments in the shape of following major points:-- "(a) that according to overall facts the occurrence is unseen;
(b) the prosecution story is not plausible;
(c) motive is not proved;
(d) place of occurrence is doubtful as no blood has been recovered from the alleged place of occurrence;
(e) prosecution's witnesses are close relatives and their statements are contradictory;
(f) despite availability of the independent witnesses none has been produced and contradiction in the statements of witnesses make the whole story doubtful."
' While elaborating these points he contended that star prosecution's witnesses are two sons and one widow of the deceased. Due to enmity they intentionally falsely implicated the convict appellant. The careful analyses of the prosecution witnesses' statements reveals that there are major contradiction, which means that they are not natural witnesses and they have not witnessed the occurrence. They have been cited as witnesses to manufacture the false evidence. He further contended that according to scrutiny of the prosecution's evidence the prosecution's witnesses namely, Zafaran and other are tractor drivers and according to their ordinary routine their presence at the relevant place of occurrence, is not natural, thus their status is of chance witnesses. It is borne out from the statements of the prosecution's witnesses that a large number of other independent persons of locality gathered at the place of occurrence but none of them is cited or produced as witness which makes the whole story doubtful. According to postmortem report and prosecution's witnesses, there was continuous bleeding from the body of the deceased but despite this no blood is recovered from the place of occurrence, which shows that the whole story is false and fabricated. In support of his arguments he referred to PLD 1963 SC 17, 2007 SCR 332, PLD 2007 SC(AJ&K) 27, and finally submitted that in the light of the arguments, the convict- appellant deserves for acquittal, thus while accepting this appeal, the convict-appellant be acquitted from the charges.
7. While controverting the arguments of the learned counsel for the convict accused the learned counsel for the complainant submitted that all the points raised by the convict accused are hypothetical, which has no nexus with the case in hand. It is now settled principle of law that mere being relative of the deceased is no ground to discard the evidence of the prosecution witnesses if, the case is otherwise proved. No benefit to accused can be extended merely on the ground that the person present at the time of occurrence has not been produced as witness. He further explained that the consideration of the prosecution whiteness's statement, as a whole, makes crystal clear that the other persons of locality reached at the place of occurrence after the incident of firing and on the hue and cry of the prosecution witnesses. So far the objection regarding the absence of blood at the place of occurrence is concerned, the fire arm injury in the abdomen of the deceased and the postmortem report is very much clear that the huge quantity of the blood was found in the cavity of the deceased's body, therefore, the blood couldn't shed at the place of occurrence. In this case the subordinate Courts have failed to award the required capital punishment of death to the accused.
8. We have considered the respective arguments of the learned counsel for the parties and also gone through the record. On the question of facts both the Courts have recorded concurrent findings after due appreciation of the evidence brought on record. The trial Court, after discussion and appreciation of the prosecution evidence in para 22 of the judgment concluded as under:- "22. However, despite of truthfulness of prosecution case, we are not in agreement with aforesaid view assumed by the counsel for the complainant, that it was a fit case for awarding punishment of Qisas or in alternative death penalty as Tazir, on account of the reasons given hereinafter.
(i) That, it is crystal clear from examination of record as well as was an admitted fact that P. Ws . 1 and 2 were real sons, while P.W.3, was a widow of the deceased Kala Khan;
(ii) That, it stood proved from record that the P.Ws.4-6, were also closely related to aforesaid P.Ws.1-3;
(iii) That, it is evident from the record, that prior to said nefarious occurrence an altercation took place between accused person and deceased Kala Khan, which prompted the former to fire a pistol shot at the latter leading incident as a consequence of a provocation;
(iv) That, the prosecution evidence didn't reveal, that prior to occurrence of said incident, the accused person was found hatching a conspiracy to the life of the deceased.
(v) That, the prosecution evidence didn't disclose, that the accused person was a hardened criminal or had a such like past record or was a habitual criminal;
(vi) That, it wasn't on record, that it was a premeditated act committed by the accused person;
(vii) Lastly, the motive of said act was clearly mentioned in Exhs.P.A and P.B, as a family enmity existing between the parties, but it was most amazing, that none of the P.Ws.1-3, while showing up in witness-box affirmed said motive."
' Despite the concurrent findings of the Courts below, we, for our own satisfaction, have also made survey of the prosecution evidence and we remained unable to find any thing to discard the reasoning of the trial Court as recorded in para 22 of the judgment, reproduced hereinabove. So far the contention of the learned counsel for the prosecution is concerned that in murder case the normal sentence to be awarded, is death as is laid down in a case titled Muhammad Ramzan v.
State and others, reported as PLJ 1998 SC(AJ&K)
38. We would like to observe that in the referred judgment it has not been laid down as an absolute rule rather it has been opined that for awarding lesser punishment there should be some recognized reasons. Moreover, the referred judgment.
Was handed down while interpreting the statutory provisions i,e, sections 5 and 24 of the Islamic Penal Laws (Enforcement) Act, 1974, enforced at that time whereas thereafter legislative changes have been occurred and the case in hand has been tried under section 302, Azad Penal Code, which, for convenience is reproduced as under:-- "302. Punishment of qatl-e-amd.---Whoever commits qatl-e-amd shall, subject to the provisions of this chapter be-
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty five years, where according to the Injections of Islam the punishment of qisas is not applicable . "
' The clause (b) of this section itself speaks that the Court is empowered to punish with death or imprisonment for life as tazir' having regard to facts and circumstances of the case. Thus, we are satisfied with the reasons advanced by the trial Court in para 22 of the judgment reproduced hereinabove that in the light of peculiar facts and circumstances of this case, the imprisonment for life as "ta'zir" is an adequate punishment. Our this view finds support from Muhammad Khurshid's case, PLD 2007 SC(AJ&K) 27, while dealing the question of quantum of sentence it has been observed that the question of sentence requires utmost care. The same must be weighed in the golden scale and should be properly balanced to cure rest of society from the commission of crime without being unnecessary harsh". It was further observed "as it is a well settled principle of law that where the motive for offence is shrouded in mystery then the extreme penalty of death is not warranted. The sentence of life imprisonment should be sufficient to meet the ends of justice".
Therefore, while following the above cited principle of law, we hold that the appeal filed by the complainant for enhancement of the awarded punishment to the accused is not maintainable, which is hereby dismissed.
9. Now, we advert to the arguments of the learned counsel for the convict-appellant. The argument of the learned counsel for the convict appellant appears to be somewhat hypothetical. In the instant case there 1 B are three direct eye-witnesses. Admittedly they are sons and widow of the deceased but according to the prosecution story their presence on spot is natural. Moreover, the defence has failed to make out any dent in the prosecution story during the cross-examination of these witnesses or to make their presence on spot doubtful. It is almost now settled principle of law that mere relationship is no ground to discard the evidence of the prosecution witnesses. The prosecution story appears to be simple and natural, therefore, objection of the learned counsel for the convict-appellant that the prosecution story is not plausible, is without any substance.
10. The most stressed point that no blood is recovered on the spot of occurrence, also appears to be without any substance. The fire-arms injury was caused to the deceased in abdomen and the postmortem report speaks:-- "When abdomen was opened, the peritoneum was damaged. The bullet after damaging peritoneum, damaged large gut from three sides causing small holes from which contents were oozing out, then it damaged deep muscles near vertebras and bullet was found in the deep muscles. When abdomen was opened a large quantity of blood was found in the abdominal cavity."
' It is further observed by the doctor "that bullet ruptured abdominal wall, peritoneum and large gut that caused perfused haemorrhage in the abdominal cavity which lead to shock and spontaneous death". This piece of evidence clearly proves that a huge quantity of blood was found in the abdominal cavity, thus absence of blood at the place of occurrence is obvious, hence the arguments of the defence counsel that the prosecution story is not plausible due to absence and non-recovery of blood from the place of occurrence, has no substance, which is hereby repelled.
Moreover, such type of circumstantial evidence is mere corroboratory and in presence of ocular evidence is of less importance. The argument of the counsel for defence that the prosecution witness named Zaffran who is a tractor driver, in ordinarily course at the relevant time his presence at place of occurrence is not possible, thus he cannot be a natural witness rather is a chance witness, has no substance. In our opinion, mere being a tractor driver doesn't mean that his presence at the place of occurrence at the relevant time is impossible nor does it make his status as of a chance witness.
11. The other contention of the learned defence counsel that motive has not been proved, also is of no importance. The objection with regard to discrepancies also appears to be of not any worth, because the so-called pointed out discrepancies are of not a such nature to make the prosecution story doubtful or the prosecution evidence untrustworthy. The defence has failed to point out any major discrepancy, which makes the evidence doubtful or unreliable. All the objections i,e, proof of motive, discrepancies and related witnesses raised by the convict-appellant are of such nature which were raised in Abdul Rashid's case 2001 PCr.LJ 524, and this Court while dealing with the question of contradiction and variations in the statement of prosecution witnesses, held as under:- - "(9) The finding of the Shariat Court that there are contradictions between the medical evidence and the eye-witnesses is also not correct. According to the finding of the trial Court, the fire which caused death of Fazal-ur-Rehman was fired from a close range. The site plan shows that at the time of fire, the distance between the assailant and the deceased was eleven feet. According to medical jurisprudence, the burning of the clothes and blackening may be present if the gun is fired from a distance of about three feet or less. After subtracting the length of barrel of the gun and its butt, which may be about 5/6 feet, the remaining distance between the muzzle of the gun is more or less remains only about 5/6 feet; the difference of 2/3 feet is negligible as the same may be due to wrong perception of the witnesses. Thus, there is no material contradiction in the statements of eye-witnesses and medical evidence. It may be observed that it is not possible for the witnesses in such a case to give the precise distance; there is always a possibility of error of few feet or yards.
The observation of the Shariat Court that according to the statement of eye-witnesses, the distance between the assailant and deceased was about five to six yards is concerned, it may be observed that the witnesses gave statements in the Court after more than three years of the incident. Therefore, the aforesaid statements at the trial would not nullify the distance between the assailant and victim of offence at the time of firing which is mentioned in the site plan. Even otherwise, if ocular evidence is found trustworthy, the same cannot be rejected merely because there was some variation between the prosecution witnesses and the medical evidence on the point of distance between the assailant and the victim at the time of inflicting the injury.
(10) The Shariat Court has also held that the recovery memo, Exh.PL, which was signed by Naseer Ahmed and Inayat Ali was not proved by the witnesses. It may be observed that the aforesaid two witnesses have clearly stated that the gun, Exh.P/6, was recovered at the instance of Abdul Ghaffar, accused-respondent. They have proved recovery memo. Exh.PE taking it to be the recovery memo.
Of the gun which is Exh.PL due to the inadvertence of prosecutor who conducted the trial.
Apparently, the mistake was caused as a result of oversight of the prosecutor and, thus, it cannot be said that the recovery of the gun from Abdul Ghaffar, accused-respondent, has not been proved, especially so when Exh.PE is a recovery memo. Of the license of the gun which is in the name of the accused-respondent. It follows from what has been stated above that the Shariat Court was not justified in holding that the gun in question has not been proved to have been recovered from Abdul Ghaffar, accused-respondent.
(11) The reasoning given by the Shariat Court that the recoveries of empties and gun were not witnessed by independent witnesses of the locality and as such the same cannot be considered against the accused-respondent is also not correct. It has been held in a number of cases that strict compliance of section 103, Cr.P.C., is not necessary in case of recoveries or seizure memos.
Made by the Police. Similarly, mere relationship of the witnesses of the recovery memos. Is not a ground to reject their testimony dubbing the same as doubtful." (Underlining is ours)
' This Court, also in Muhammad Khurshid's case PLD 2007 SC(AJ&K) 27, while dealing the admissibility of evidence of relative witnesses, held as following:-- "24. In the instant case both Muhammad Najeeb and Tauseef Ahemd appeared as witnesses and no enmity with the appellant was suggested to them during the cross-examination. Even the accused in his statement under section 342, Cr.P.C., did not attribute any enmity with them from the entire evidence it did not transpire that they had any enmity with the accused persons. It is well settled principle of law that evidence of a witness couldn't be disbelieved or discarded merely on the basis of relationship, unless and until it is proved that the witness was inimical towards the accused. This view finds support from a case titled Muhammad Khalil v. The State (1992 SCR 249), relevant page 254, which is as under: "The mere fact that some of these witnesses are related to the deceased is not sufficient to discard their testimony, especially so when they have not been shown inimical to the accused-appellant.
So far as the argument that the eye-witnesses are chance witnesses and could not be relied upon without corroboration is concerned, we are of the opinion that if the testimony of such a witness rings true, it can be relied upon without seeking any corroboration. In the instant case if at all any corroboration is insisted upon, the same is furnished by the recovery of blood-stained hatchet, at the instance of the accused-appellant, and the medical evidence on the record."
' This view further finds support from a case titled Abdul Khaliq v. Jehangir and another 1999 YLR 1908, wherein it has been held at page 334 as under:- "The related witnesses cannot be disbelieved as interested witnesses unless they have a motive to falsely implicate the accused."
' As such was held in a case reported as Ishaq v. The State (PLD 1985 Karachi 595), relevant page 600, which is as under: "However, it is a settled law that mere relationship of witness with the victim of the crime is no ground to discredit his testimony."
12. While dealing with the question of discrepancies, in a case titled Abdul Rashid and 3 others v.
Abdul Ghaffar and 5 others reported as 2001 PCr.LJ 524, it was held as following:-- "The contention of the learned counsel for the accused-respondents that there are discrepancies between the eyewitnesses as to the date when their statements were recorded under section 161, Cr.P.C., renders the prosecution case doubtful is also not tenable because the eye-witnesses in this case have been named in the F.I.R. Which was promptly recorded. Therefore, even the belated recording of the statements under section 161, Cr.P.C. Would not help the accused-respondent; thus, the discrepancies on the said point do not make the prosecution case doubtful." (Underlining is ours)
' From the survey of case law, it appears that "mere relationship is no ground for discarding the evidence of witnesses. It may be observed that a party may rope innocent persons in a crime along with a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent persons."
13. While dealing with the question of number of witnesses in Noor Muhammad's case 1992 SCR 1, this Court has observed that "no specific number of witnesses is necessary in criminal cases to prove the case. A solitary witness is sufficient if his statement is corroborated from the other circumstances". Thus the argument of the defence counsel that the prpsecution has failed to produce any, of the other persons as witnesses, gathered on spot, does not damage the prosecution case. Moreover, it has been rightly clarified by the learned counsel for the prosecution that according to facts of this case it transpires from the evidence that the persons of locality reached on spot after the incident, therefore, none of them was a direct eye-witness of the incidence.
' In view of the above detailed reasons, the defence has failed to paint out any material infirmity in the impugned judgment or create any serious doubt in the prosecution story. Thus finding no force in this appeal filed by the convict-appellant, the same is hereby dismissed: