' RAJA SAEED AKRAM KHAN, J. --- The captioned appeals have been addressed against the consolidated judgment of the Shariat Court dated 26.05.2011, whereby the appeals filed by both the parties have been dismissed, whereas, the reference application submitted by the Trial Court for confirmation of death sentence awarded to the convict-appellant, Ghazanfar Ali, has been answered in affirmative. Since both the appeals arise out of the same judgment, therefore, these were heard together and are being disposed of through this consolidated judgment.
2. The facts forming the background of the instant appeals are that Waqas Ahmad, complainant, lodged an. F.I.R. on 22.03.2005, at 8:30 p.m., at Police Station Nar, Tehsil and District, Kotli, alleging therein, that on the fateful day, at 6:30 p.m., his father Raja Muhammad Ilyas Khan, Naib Tehsildr Kotli, was "proceeding towards his house while riding on a motorcycle of Talat Zahoor Ghazanfar Ali s/o Ghazan Khan, armed with lethal weapon waylaid near his house. As soon as his father alighted the motorcycle and started to go towards his house, Ghazanfar Ali, accused fired shots upon him from the front side. His father after sustaining severe injuries, died on the spot. The complainant received the information of occurrence at his house. The eye-witnesses are also present at the spot alone with the dead-body.
3. On the aforesaid report, a case under Section 302, APC was registered. On the same day, the complainant presented another application while alleging that in the evening on 22.03.2005, he was at home when Muhammad Taj s/o Zaman Ail came there and told him about the occurrence.
On receiving information, he rushed towards the place of occurrence and found the dead-body of his father, socked with blood, surrounded by many persons. Ghazan Khan, his maternal uncle, told him that his father has been killed by his son Ghazanfar Ali. Whereupon, he went to the Police Station, Nar and got registered a case against Ghazanfar Ali. When he, alongwith police reached, the place of occufrence many people were gathered over there, amongst them, Talat Zahoor s/o Zahoor Ahmed, Aftab Ahmed s/o Saidullah and Fidda Hussain s/o Abdullah, told him that Ghazan Khan and Ghazanfar All both have murdered his father by firing shots in their presence, Ghazan Khan, accused was armed with Kalashnikov and Ghazanfar Ali was armed with .30 bore pistol. Raja Saleem s/o Bashir Khan told him that prior to the occurrence Ghazan Khan made a complaint that Muhammad Ilyas, father of the complainant, wanted to take away his property, shops, land and for this purpose, he had taken his I.D. Card. Hameed, a cousin of Ghazan Ali, residing in U.K., has been sending money to his deceased father, who his brother-in-law, Master Zahoor Ahmed, constructed shops in Gulpur Bazar. According to ,him, Ghazan Khan always threatened to the deceased wherever he met him. For the reasons mentioned above, Ghazan Khan and his son Ghazanfar Ali have murdered his father in a preplanned manner. The accused were arrested by the police and after completion of the investigation, the challan was presented in the District Court of Criminal Jurisdiction, Kotli on 11.04.2005.
4. The Trial Court after necessary proceedings, vide judgment dated 19.05.2005, convicted and sentenced Ghazanfar Ali to death as Qisas for commission of offence under Section 302(a), APC alongwith one year's rigorous imprisonment, under Section 13 of the Arms Act, 1965, while extending him the benefit of Section 382-B, Cr.P.C., whereas the accused, Ghazan Khan, was acquitted of the accused of the charge.
5. Feeling aggrieved from the judgment of the Trial Court, both the parties filed separate appeals before the Shariat Court. The convict-appellant filed appeal for acquittal, whereas, the complainant filed appeal for setting aside the judgment of the Trial Court to the extent of accused, Ghazan Khan. A reference was also submitted by the Trial Court before the Shariat Court for confirmation of death sentence awarded to the convict-appellant, Ghazanfar Ali. The learned Shariat Court vide impugned judgment dated 19.05.2005 while maintaining the judgment of the Trial Court also ordered for payment of compensation to the tons of Rs, 2,00,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C. Moreover, the learned Shariat Courts also answered the death reference submitted by the Trial Court for confirmation of death sentence in affirmative.
Hence, these appeals.
6. Raja lnamullah Khan, Advocate, the learned counsel for the convict-appellant argued that the Trial Court as well as the learned Sharlat Court while awarding the capital punishment i.e, sentence of death as Qisas, failed to appreciate the evidence brought on record in a legal manner. He submitted that the case before this Court is not for acquittal but for reduction of sentence as the standard of evidence required for awarding the death sentence as 'Qisas', is not available in the case in hand. He added that on the non-availability of such standard, which is required for awarding the sentence of death as Qisas, the Court was duty bound to award the sentence of life imprisonment as Tazir. He further added that the death sentence in the case in hand is extreme, as maximum it is the case of life imprisonment. In continuation of his arguments, he submitted that all the prosecution witnesses (PWs) are chance witnesses and they have failed to prove their presence on the spot at the relevant time. In this way, their evidence cannot be relied upon for awarding the capital punishment. He drew the attention of this Court towards the applications made for registration of the case while submitting that the complainant of the case is son of the deceased, Neither any eye-witness has been mentioned in the applications by the complainant nor he stated about the source of information, which is a strong mitigation on the part of the prosecution and the benefit of the same should be extended to the convict-appellant. He contended that according to the prosecution story, Ghazan Khan, told the complainant that his father has been murdered, whereas, at the same time, he has been nominated as accused, armed with Kalashnikov, which is a material contradiction and the same cannot be ignored lightly, but this aspect of the case has not been considered by the Courts below. He added that on the basis of motive established by the prosecution, the death penalty cannot be awarded. He further added that one of the witnesses, namely, Tallat Zahoor is son of Zahoor Ahmed, whose enmity with the convict-appellant is established from the record, therefore, his statement cannot be relied. He contended that no evidence is available on record that it was a preplanned occurrence, moreover, the alleged motorcycle on which the deceased was boarding has not been taken into possession.
He submitted that all the PWs. are closely related to each other and they are inimical towards the accused. The statement of one Aftab Ahmed has not properly been appreciated by the Courts below as the occurrence took place after the Maghrib prayers, whereas, according to his statement, after Asar prayers, he left for to attend the Niaz. Admittedly, the distance of his house from the place of Nithz is not at a distance of less than one kilometer. In this way, his presence at the spot is highly doubtful. He contended that PWs No, 4 and 6 were not initially cited as witnesses.
They are witnesses of type, just to make the improvement and to strengthen the case which creates a serious doubt. All these contradictions escaped the notice of the Courts below. He has relied upon the cases reported as Hakam Deen v. The State and 15 others [2006 SCR 12], Hassan and others v. The State and others [PLD 2013 SC 793], Anees-ur-Rehman and another v. The State [PLD 2002 Lah. 110], Mst. Kishwar Bibi and others v, Mst. Fazal Bibi and 2 others [PLD 2004 Lah. 717] and Zahid Hussain v. The State [1999 P.Cr.LJ. 1044].
7. On the other hand, Mr. Abdul Majeed Mallick, advocate, the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the convict-appellant. He submitted that both the Courts below while concurring with the findings rightly came to the conclusion that the prosecution has successfully proved the case beyond reasonable doubt. He added that all the PWs are independent. He further added that although the eyewitnesses are chance witnesses but they have proved their presence on the spot at the relevant time, therefore, both the Courts below have rightly believed their evidence. He submitted that the witness, namely, Tallat Zahoor has categorically stated in his statement that he has no enmity with the accused party. Even otherwise, on the ground that the father of any witness has someor animosity with the accused, the evidence of the son cannot be discarded. Moreover, the purgation was done by the Trial Court and the witnesses were found Adil. He submitted that the F.I.R. was made in a natural manner as the complainant was a college student and he has not concealed any fact. The complainant categorically mentioned in the first application that his father has been murdered in presence of eye-witnesses, therefore, no padding and improvement has been made. Even otherwise, the F.I.R. is not a substantive piece of evidence and each and every detail is not required to be reduced in writing. He added that once the case has been proved, the capital punishment is proper sentence. He has relied upon the cases reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240], Muhammad Ramzan v. The State [1996 SCR 336] and Misri v.
State [1998 SCR 337].
8. Mr. Mehmood Ahmed, the learned Additional Advocate-General while appearing on behalf of the State has strongly supported the arguments advanced by the earned counsel for the complainant.
He submitted that it is a case of promptly lodged FIR. The question of identification does not arise in this case as the parties are known to each other. He added that both the Courts below appreciated the evidence in a legal manner and rightly awarded the death penalty. He lastly argued that the convict-appellant is not entitled for any leniency.
9. We have heard the learned counsel for the parties and also gone through the record alongwith the impugned judgment. This is a case in which the F.I.R. was lodged on the complaint of one Waqas Ahmed, the real son of the deceased. The learned councel for the convict-appellant at the very outset has stated at bar that he is not seeking acquittal of the convict-appellant rather it is a case of lesser punishment. The first argument of the learned counsel for the convict-appellant is that two applications with different versions have been moved on the same day which create doubt in the prosecution story. It may be stated that Waqas Ahmed, the complainant of the case is the real son of the deceased. On receiving the information about the murder of his father, by one Muhammad Taj, he immediately moved the first application, Exh.PA, for initiation of legal proceedings, After moving the above-said application, he reached at the place of occurrence where eye-witnesses, namely, Tallat Zahoor, Fidda Hussain and Aftab Ahmed told him that his father has been murdered by the convict-appellant and his father, Ghazan Khan. Thereupon, he moved the second application, Exh. PB. After going through the contents of both the applications, it appears that nothing has been concealed by the complainant who is a college student and not the eye-witness of the occurrence. Thus, it is clear that first application has been moved by the complainant immediately after receiving information from Taj Muhammad and second application was moved after visiting the place of occurrence on the information furnished by the eye-witnesses. A juxtapose perusal of both the applications, It reveals that the same have been made while narrating the natural story. Although, in the first application the name of the eye- witnesses have not been mentioned, however, the complainant has categorically mentioned that the occurrence took place in the presence of eye-witnesses. Later on, after visiting the spot, he came to know about the persons in whose presence the occurrence took place. In this state of affairs, the argument of the learned counsel for the convict-appellant that it is a strong mitigation which should go in favour of convict-appellant, is not convincing in nature. Even otherwise, the F.I.R. is not a substantive piece of evidence and the object of F.I.R. is only to bring the law into motion. In a recent unreported judgment in the case titled Karim Dad v. Javed and others (criminal appeal No, 25 of 2011, decided on 23.2.2015) while dealing with the proposition this Court observed as under:--- 13.While meeting the argument regarding the non-signing of F.I.R. by the complainant it may be stated that F.I.R. is not a substantive piece of evidence and the object of is only to bring the law into motion, therefore, in our estimation non-signing of F.I.R. is not fatal for the prosecution especially, when the facts have itself been narrated by the injured person who later on succumbed to the injuries."
10.The next argument of the learned counsel for the convict-appellant that all the eye-witnesses are chance witnesses and it is not safe to award the death sentence as Qiias while relying upon their statements. There is no doubt that the eye-witnesses are the chance witnesses and this fact has also not been denied by the other side even before this Court, However, it may be observed here that merely on the ground that the eye-witnesses are the chance witnesses the case of the prosecution cannot be smashed out especially, when the prosecution has succeeded to prove the presence of the witnesses, satisfactorily. However, if the prosecution failed to establish their presence at the relevant time then the corroboration was necessary for making the evidence admissible. It may be observed here that it is a settled principle of law that the testimony of the chance witnesses should be carefully examined. Keeping in mind the yardstick to judge the testimony of the chance witnesses, we have examined the statements of the eye-witnesses. It will be useful to reproduce here the relevant portion of the statements of the eye-witnesses which read as under:-- The eye-witness, namely, Fida Hussain stated in his statement that:--- {{URDU TEXT}} The other eye-witness, namely, after Aftab Ahmed, stated in his statement that:--- {{URDU TEXT}} ' After taking into account the statements of eye-witnesses, we are convinced that they remained consistent on the material points and made their statements in line with each other. All the eye- witnesses proved their presence at the relevant time, satisfactorily. All of the witnesses belong to the same vicinity who are known to the convict-appellant. In this way, the question of false implication of the accused does not arise. No material discrepancies have been brought into our notice. The discrepancies, which the learned counsel has pointed out are insignificant and those have no. substance to discard the statements of the eye-witnesses.
11.The argument of the learned counsel for the convict-appellant that presence of the eye-witness, namely, Aftab Ahmed is highly doubtful as the occurrence took place after Maghrib prayers, whereas, he stated in his statement that after the Asar prayers, he left for the home after attending the ceremony of 'Niaz' and admittedly the distance of his house from the place where the Niaz was sermonized, is not more than one kilometer. It may be stated that the occurrence took place in the month of March and normally in this month the time of Asar-prayers-starts at about 4:30 p.m. The learned counsel for the convict-appellant failed to establish that as to when the said witness offered the Asar prayers; whether he offered the same with jamat or he offered the same in the last hours. He may have offered the Asar prayers in the late hours and proceeded towards home. In absence of any plausible explanation in this regard, it cannot be said that he offered the Asar prayers immediately when the time of Asar prayers started and thereafter he left for home. Thus, the argument of the learned counsel in this regard has no substance. The discrepancies pointed out by the learned counsel for the convict-appellant do not discredit the statement of the witness who otherwise proved his presence at the time of occurrence, satisfactorily.
12.The argument of the learned counsel for the convict-appellant that the alleged motorcycle boarding on which the deceased came at the place of occurrence has not been taken into possession, is also irrelevant as it is not a case of dispute regarding property and the recovery of the same is not a requirement of law. No other motive, except which has been setup by the prosecution, has come on the record. The complainant has categorically stated that his family has no enmity with any person, except his paternal uncle, as he was under impression that his father (deceased) wants to get the property belonged to him.
13.The argument of the learned counsel for the convict-appellant that the statement of the witness, namely, Tallat Zahoor is also not reliable as his father has enmity with the convict- appellant, is also not convincing in nature. If for the sake of argument, it is assumed that his father had anyor animosity against the convict-appellant, even then that cannot be made basis to discard the statement of the said witness. The defence also failed to bring anything on record, that the said witness was inimical towards the convict-appellant, whereas, he categorically stated in his statement that he has no enmity against the accused party. After scrutinizing, the evidence of the eye-witnesses, we are of the view that all the eye-witnesses are independent and trustworthy and the Trial Court as well as the learned Shariat Court has appreciated their evidence according to the settled norms of justice. The argument of the learned counsel for the convict-appellant that all the witnesses are closely related to each other, therefore, their statements cannot be believed, has also no substance. It is settled principle of law that mere relationship is no ground for discarding the evidence of a witness. Reliance can be placed on a case reported as Irfan Hussain v.
Allah Din and others [2014 P.Cr.LJ. 312] wherein it has been held that:-- "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 alongwith a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent person."
14.So far as the crucial argument forcefully stressed by the learned counsel for the convict- appellant that standard of evidence brought on record does not allow to award the normal penalty of death as Qisas is concerned, we have appreciated the evidence brought on record. It is pertinent to mention here that difference between Qisas and Tazir is that in case of Qisas the Court has no discretion in the matter of sentence, whereas, in case of Tazir the discretion lies with the Court to aware sentence of death or life imprisonment. For awarding the sentence of Qisas the requirements of Section 304, APC are required to be fulfilled. During the course of arguments, a query was made to the learned counsel for the convict-appellant; whether .he has any reservation/objection regarding Tazkiyat-ul-Shahood (purgation), he fairly stated that he has no objection regarding the same. However, for our own satisfaction, we have minutely examined this aspect of the case. In this regard, we have gone through the relevant provisions of law, i.e, Section 304, APC read with Article 17 of the Qanun-e-Shahadat Order, 1984. It will be advantageous to reproduce here the relevant provisions of law, Section 304, APC are reads as under:--- "304. Proof of qatl-i-amd liable to qisas, etc. (1) Proof of qatl-i-amdi shall be in any of the following forms, namely:--- (a)the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b)by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No, 10 of 1984), (2)The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas."
' Article 17 of the Qanun-e-Shahadat Order, 1984 reads as under:--- "17. Competence and number of witnesses. (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2)Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,--- (a)in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b)in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
' After going through the above-said provisions of law, it appears that the pre-requisites for punishment of Qisas are the proofs as provided in Section 304, are itself with reference to either accused makes confession before the Court or as required under Article 17 of Qanun-e-Shahadat Order, 1984. Where proof of Qatl-i-Amd liable to Qisas as required under Section 304, are is not available, the accused is liable to be convicted and sentenced under Section 302(b), APC. It may be observed here that in Hudood and Qisas cases, tazkiya of witnesses is an obligation on the Court for ascertaining their competency and righteousness and the record shows that Trial Court has fulfilled its obligation in this regard. The learned counsel for the convict-appellant has also not raised any serious objection regarding the purgation. In this scenario, it can safely be held that punishment of Qisas can be awarded in the case in hand as the prosecution has fully proved its case beyond reasonable doubt. The learned counsel for the convict-appellant failed to bring its case within the purview of lesser punishment as he failed to point out any mitigation. The sentence of death as Qisas can only be converted into life imprisonment as Tazir where requirement of Section 304, APC has not been fulfilled; whereas, in the case in hand no such situation has arisen.
15.In our estimation, both the Courts below while evaluating the evidence with great care and caution have rightly come to the conclusion that the case against the convict-appellant has been proved. In such-like situation, the normal penalty of death should be awarded. Reliance can be placed on a case reported as ljaz alias Billa and 3 others v. The State [2002 SCMR 294], wherein it has been observed as under:--- "15. The Court has time and again observed that if a case is proved against, the culprit beyond reasonable shadow of doubt and offence under ' Section 302, P.P.C. Is established, the normal penalty of death should be awarded and leniency In any case should not be shown, except where strong mitigating circumstances for lesser sentence could be gathered from the evidence available on record."
' As the learned counsel for the convict-appellant has no objection regarding the other pieces of evidence, therefore, we do not intend to discuss the same.
16.While attending the appeal which has been filed by the complainant for conviction of accused-respondent, Ghazan Khan; we have gone through the record. In the connected appeal, after detailed discussion of all the aspects of the case in the light of the evidence brought on record, we have come to the conclusion that the case against the convict-appellant, Ghazanfar Ali has been proved beyond reasonable doubt. After scrutinizing the whole record we are of the view that the Courts below have rightly extended the benefit of doubt to the accused, Ghazan Khan. It is spelt out from the record that both the Courts below while passing the acquittal order have assigned the strong reasons and it is consistent view of the apex Court of Pakistan as well of this Court that an acquittal order can only be interfered with or set aside if the Court comes to the conclusion that the same is capricious, fanciful, perverse and arbitrary or has been passed against the settled norms of ac ministration of justice, whereas, no such element is found in the judgments passed by both the Courts. It is also celebrated principle of law that the appeal against conviction stands at different footing as compared to the appeal against acquittal as after acquittal the presumption of double innocence is accrued to an accused. We do not find any perversity in the acquittal order passed by the Courts below in absence of that no interference is warranted under law. ' Reliance can be placed on a case reported as Ali Muhammad v, Muhammad Akram and another (2014 SCR 351], wherein it has been observed as under:-- "10. It is also apparent from the record that the accused and complainant are the real brothers and there is a dispute over a piece of land between them. Therefore, possibility of false implication cannot be ruled out. As both the Courts below disbelieved the ocular account furnished by the prosecution and we are also convinced by the reasons recorded by both the Courts below while acquitting the accused, therefore, we are not inclined to discuss other pieces of evidence as the same have only the corroborative value. It is settled principle of law that until an acquittal order is found perverse, arbitrary and fanciful that cannot be interfered with."
' It may be observed here that it is recognized phenomenon of law that when the prosecution proved its case beyond reasonable doubt then it is paramount duty of the Courts to impose deterrent punishment on the offenders make the evildoers an example and a warning to the like- minded people. The apex Court of Pakistan in a case reported as Miss Najiba and another v.
Ahmed Sultan alias Sattar and 2 others [2001 SCMR 988], while dealing with the proposition observed as under:--- "6.It is obvious from the above-cited case-law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty-bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death the normal penalty prescribed by law is death sentence, however, in cases where there are mitigation or extenuating circumstances warranting lesser punishment. The Courts while awarding lesser punishment have to record reasons justifying the same."
7. In the light of above discussion, we are of the unanimous view that the Trial Court as well as the learned Shariat Court has rightly appreciated the evidence brought on record and has not committed any illegality or infirmity while passing the impugned judgments. Resultantly, both the appeals having no substance stand dismissed.