' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Zafar Iqbal was tried in a case F.I.R. No,7 dated 7-1-2008 registered under sections 302/34, P.P.C. At Police Station Thingi, District Vehari for committing murder of one Muhammad Asif Rizwan. The learned trial Court after conclusion of the trial of the case vide judgment dated 26-8-2008 convicted Zafar Iqbal appellant. The following sentences had been awarded to Zafar Iqbal son of Khadim Hussain:-- ' Zafar Iqbal son of Khadim Hussain ' Death Sentence under section 302(b), P.P,C. As "Tazir" with a compensation of Rs,1,00,000 to be paid to the legal heirs of Muhammad Asif Rizwan deceased as required by section 544-A, Cr.P.C.
And in default of the payment of the amount, he was directed to further undergo six months' simple imprisonment.
2. Murder Reference No,37 of 2009 has been sent by the learned trial Court as required under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Zafar Iqbal while Zafar Iqbal appellant also assailed his conviction and sentence by filing Criminal Appeal No,281 of 2008.
Both the matters are being disposed of by this single judgment.
3. Briefly the facts as alleged by Qamar-uz Zaman (P.W.9) the complainant in his statement in the .F.I.R. Exh-PJ/2 are that the occurrence in this case for the murder of Muhammad Asif Rizwan had taken place at 12.00 (midnight) on 7-1-2008. According to him, he (complainant) along with his brother Muhammad Asif Rizwan (deceased), Safdar Hussain (P.W.10) and Mukhtiar Hussain (given up P.W.) along with other people of the vicinity were present in connection with marriage ceremony of Sarfraz son of Muhammad Hanif due to close relative. That Zafar Iqbal alias Pappi son of Khadim Hussain resident of 44/WB (accused) armed with Carbine .12 bore came, raised lalkara to Muhammad Asif Rizwan brother of the complainant to be ready to die and immediately caused a straight fire shot to Muhammad Asif Rizwan which landed at his chest on left side, who after receiving injury fell down. The complainant along with P.Ws. Safdar Hussain and Mukhtiar Hussain tried to apprehend accused Zafar Iqbal who fled away by brandishing firearm weapon. The complainant and P.Ws. Shifted Muhammad Asif Rizwan to District Headquarter Vehari in injured condition who was admitted there by the doctor. The doctor after examination of the injured shifted him in Surgical Ward where injured died on the next day at 9-00 a.m. And then offence under section 302, P . P. C . Was added.
' The motive for the occurrence was that accused Zafar alias Pappi had personal grudge against Muhammad Asif Rizwan regarding possession of an Ihata and on the basis of this grudge, accused Zafar Iqbal committed Qatl-e-amd of Muhammad Asif Rizwan.
4. The police completed usual investigations and submitted the challan against Zafar Iqbal alias Pappi accused in which he was charge-sheeted- on 16-4-2008 under sections 302/34, P.P.C. The accused professed innocence and claimed trial. The prosecution examined eleven witnesses to prove the charge. The learned trial Court at conclusion of trial, convicted Zafar Iqbal appellant in the manner noted in preceding para.
5. Qamar-uz Zaman (P.W.9) and Safdar Hussain (P.W.10) deposed about murder of Muhammad Asif Rizwan, Akbar Dawod, C-420 (P.W.2), Ghulam Mustafa, 389/C (P.W.3) deposed about sending parcels to the Forensic Science Laboratory. Muhammad Ashiq (P.W.6) identified the dead body of Muhammad Asif Rizwan before the Doctor. Sajjad Hussain (P.W.7) deposed about the recovery of crime weapon used in the occurrence. Dr. Ghulam Abbas (P.W.1) and Dr. Muhammad Ahmad Shahzad (P.W.4) provided the medical evidence while Muhammad Iqbal SI (P.W.11) deposed about his investigations conducted in the case.
6. Dr. Ghulam Abbas, Medical Officer, DHQ Hospital, Vehari on 7-1-2008 at 1-15 a.m. In night examined Muhammad Asif Rizwan (injured) brought by Qamar-uz Zaman (brother) and found the following injury on his body:-- ' Injuries:--
(1) Wound of Entry: A fire circular wound 6 cm x 6 cm x DNP, margins inverted on the front of left side of chest with omentum coming out 10 cm below the left nipple.
' In the opinion of Doctor, probable duration of injury was fresh. Fresh bleeding was coming from the wound. Kind of weapon used was the firearm. The patient was referred to Surgical Ward after providing first aid.
7. Dr. Muhammad Ahmad Shahzad, Medical Officer, RHC, Vehari (P.W.4) on 7-1-2008 at 1-00 p.m.
Conducted autopsy over dead body of Muhammad Asif Rizwan deceased and found the following injuries on his body:-- ' INJURIES:-
(1) A stitched wound 10 cm, extending from left side of upper abdomen to midline (wound of entry of fire arm) as per MLC No,09/08 DHQ Vehari, 10 cm below left nipple.
(2) A stitched wound 25 cm extending from epigastrium to lower abdomen.
(3) A circular hole (of colostomy) 3 cm x 3 cm on right side of abdomen, 8 cm from midline and 9 cm above anterior superior iliac spine.
(4) A circular wound (of drain) 1 cm x 1 cm on left iliac fossa.
(5) A circular hole 1 cm x 1 cm (of drain) on right side of abdomen 4 cm above injury No,3.
' In the opinion of Medical Officer, death was caused due to injury No, 1 . The said injury was grievous and fatal to life. All the injuries were ante-mortem, which were inflicted with firearm weapon. The cause of death was due to haemorrhage and shock which was sufficient to cause death in ordinary course of nature. Probable time elapsed between injuries and death was within 8 to 10 hours and between death and postmortem was about 3 to 4 hours.
8. The prosecution closed its evidence by giving up Mukhtiar Ahmad (P.W.) being unnecessary.
Report of Chemical Examiner Exh.PP, Serologist Exh.PQ and report of Forensic Science Laboratory regarding pistol Ex.PR were also placed on record.
9. The prosecution evidence so recorded during the trial was confronted to the accused Zafar Iqbal alias Pappi while recording his statement under section 342, Cr.P.C. Who set up his defence in the following words, in an answer to the question No,8:-- "Why this case against you and why the P. Ws. Deposed against you?"
"The P.Ws. Are highly interested. They are closely related with the deceased and inter se and also inimical towards me. In fact it is unseen ocurrence. I have been falsely roped in this case due to enmity/grudges. The police being collusive with the complainant party arrested me on the very first day of occurrence from my home and I was kept under illegal detention for 22 days by the police concerned. I was subjected to persecution during my illegal detention to fetch confession and when my condition became precarious- the Investigating Officer concocted the story of my production before him by some person. The date of arrest is totally fictitious and concocted one. I am innocent. When the police failed to detect the real culprit of this blind murder, I have been falsely challaned in this case just to fill in the gap."
' The appellant did not opt to produce any evidence in his defence nor wanted to make statement under section 340(2), Cr.P.C. To disprove the, allegation levelled against him in the prosecution evidence.
10. It is contended by learned counsel for the appellant that the learned trial Court has erred in law in awarding death penalty to the appellant. He has contended that the prosecution has failed to prove the case against the appellant through independent witnesses. According to the learned counsel eye-witnesses whose evidence was believed by learned trial Court, were closely related and were interested witnesses, so their evidence ought to have been discarded and disbelieved, that there were material contradictions in deposition of the prosecution witnesses in respect of locale of injury as noted by the Medical Officer (P.W.4) in his statement which has not been noticed by the learned trial Court while recording the conviction and sentence of death against the appellant. He next contended that the prosecution has failed to prove the motive which has been attributed to the appellant for the murder of Muhammad Asif Rizwan but had erred in awarding capital punishment when the courts itself had disbelieved the motive part of the prosecution case.
11. The submissions have been controverted by the learned Deputy Prosecutor-General with the assistance of learned counsel for the complainant and argued that the learned trial court has not disbelieved the motive in clear terms which otherwise was proved by the prosecution witnesses in clear and candid manner; that the appellant was having dispute over the possession of the 'Ihata' against the deceased in the garb of which he (appellant) had committed the murder in a marriage ceremony in presence of the P.Ws. And others. So far as the contention with regard to the contradiction in the statement of P.Ws. Regarding locale of injury is concerned, learned counsel submitted that the injury was available on the chest of the deceased and it was humanly not possible to provide a graphic picture of the injury by mentioning the exact place where it was sustained. According to the submission of the learned counsel, young brother of the complainant was killed within his view, therefore, lapse in providing exact seat of injury is quite natural. Learned counsel further submitted that the occurrence had taken place in the ceremony of marriage and within 1.45 hours the matter was reported to the police leaving no room for doubt of false implication of the appellant in the instant case. He further stated that the prosecution evidence based upon ocular account, medical evidence and recovery of crime weapon has duly been proved by the prosecution witnesses, therefore, the learned trial Court has rightly recorded the conviction of the appellant and awarded him capital punishment.
12. We have heard the learned counsel for the parties and perused the record.
13. The incident had taken place at 12.00 night on 7-1-2008 which was witnessed by Qamar-uz Zaman, Safdar Hussain and Mukhtiar Ahmad, P.-Ws. Regarding which occurrence the F.I.R. Was registered at the police station within about two hours. The perusal of the record indicates that the appellant is specifically nominated in the F.I.R. Where the names of the witnesses have also been provided while the crime weapon was also recovered at the instance of the appellant which was sent to the Forensic Science Laboratory for matching the same with the crime empties and according to the report of Forensic Science Laboratory Exh.PR, the bullets were fired from the same weapon recovered at the instance of the appellant.
14. The contention of learned counsel for the appellant that both the eye-witnesses were closely related to the deceased, is no ground' to discard the testimony in view of the case of Talib Hussain v. The State (2009 SCM R 825) in which it was observed that mere close relationship of witnesses is not sufficient to disbelieve the testimony of -such witnesses unless it is shown that his evidence is not confidence-inspiring. Besides this judgment of the Apex Court, there are chain of authorities in this respect. The appellant has miserably failed to pinpoint any ulterior motive on the part of P.W.9 and P.W.10 for falsely implicating him in the case in hand, thus, the 'statements of these P.Ws. Were properly relied upon by the learned trial court. Even otherwise, the eye-witnesses had provided confidence-inspiring account which could not be shattered by the defence in the cross- examination conducted upon them, thus, the contention of the learned counsel having no force is repelled.
15. The further contention of learned counsel for the complainant that the learned trial court had not disbelieved the motive part of the case is unfounded as the learned trial Court in para 49 of its judgment has clearly mentioned that the motive is something hidden in the mind of the assailant which he materializes whenever he finds chance and now it was not necessary for prosecution to prove the same. This part of the judgment of the trial Court does not indicate that the court has provided any candid opinion on the fact thus, in absence of any categorical finding, it can be assumed that the court had not believed the motive part of the case. Moreover, P.W.9 in his statement although has mentioned that there was a dispute of possession of 'Ihata' in between the deceased and the appellant but he has not provided the nature of that dispute and that the said dispute was being resolved by court or any complaint in this respect was lodged with the competent authority. It is also not mentioned in the statement that any legal remedy was availed by the deceased against the possession of the Ihata. In our opinion, the prosecution remained failed to prove the fact of motive to its hilt.
16. The next contention of learned counsel for the appellant that the testimony of P.W.9 and P.W.10 are not in line with the crime report Exh.PJ/2 as P.W.9 in his statement has provided the locale of injury on the right side of the chest of the deceased whereas in the F.I.R. He had mentioned that the deceased had received injury on the left side of his chest. This contention of the learned counsel is ill-founded for the reason firstly that the defence did not confront this contradiction to the P.W. In cross-examination and secondly that the injury was available on the left side of the chest of the deceased according to the report of the Medical Officer (P.W.4) which is quite in line with the F.I.R.
And it does not matter that the P.W. In his statement has provided different place where the injury was present as his statement in the court was recorded on 22-7-2008 after lapse of more than six months of the occurrence. There is a possibility that due to lapse of time, the witnesses may have provided different seat of injury than he had mentioned in F.I.R. This contradiction is not fatal to the main statement made by the P.W. As he remained consistent on the fact of arrival of the appellant at the spot, raising lalkara and then firing upon the deceased. This contention of the learned counsel is also repelled.
17. After discussing the prosecution evidence we now tend to have a glance on defence taken by the appellant in his own statement recorded under section 342, Cr.P.C. In which statement he had mentioned that the occurrence was unseen and due to enmity/grudge, he was enroped falsely in the case. He has also levelled allegation against the police which according to the appellant had arrested him on the day of occurrence from his house and kept him under illegal detention for 22 days for having his confession when his condition became precarious, through a concocted story, his arrest was shown in instant case. When we have examined this defence of the appellant, it is found that the allegation of arrest of the appellant on the day of occurrence and his detention in the police lock-up is not established from the record as the appellant had not produced any evidence to show that he was in illegal detention of the police. Apparently he had not filed any petition in the court for his release from illegal detention. Similarly, simple statement that it was an unseen occurrence without any corroboration is not believable. The prosecution through convincing and cogent evidence has established the fact that in presence of witnesses, the occurrence had taken place. We do not find any reason to believe the plea raised by the appellant in his statement.
18. The analysis of the case of the parties as made by us in the preceding paras indicate that the prosecution by producing convincing and confidence-inspiring ocular account which is in line with the medical evidence, factum of recovery of crime weapon at the instance of the appellant, established the charge of murder of Muhammad Asif Rizwan beyond any shadow of doubt. As already has been observed above, that the case of the prosecution on the factum, motive for the occurrence has not been established on the record, therefore, treating the same as mitigating circumstance, we are inclined to commute the death sentence awarded to the appellant into one imprisonment for life.
19. For the foregoing reasons, the appeal in hand is dismissed with the modification of commuting the sentence of death into one imprisonment for life while the remaining sentences shall remain intact. Benefit of section 382-B, Cr.P.C. Is also extended in favour of the appellant.
20. Death sentence of the appellant/convict Zafar Iqbal alias Pappi son of Khadim Hussain is NOT CONFIRMED and Murder Reference No,37 of 2009 is answered in the NEGATIVE.