1. ' AFTAB AHMED GORAR, J.---Through this Cr. Jail Appeal appellant Mohammad Hassan has impugned judgment dated 18.01.2011 passed by learned II-Additional Session Judge Thatta in Sessions Case No, 179 of 2001, whereby he has been convicted under section 302(b), P.P.C. And sentenced to death as Ta'zir and to pay compensation of Rs,100,000/- to the legal heirs of deceased Asghar All Baran under section 544-A, Cr.P.C. And in case of non-payment of compensation amount, he has to undergo R.I. For six (6) months more. However, sentence of death was made subject to confirmation by this Court.
2. ' Precisely, the facts of the prosecution case are that complainant Abdul Hague lodged FIR No,63 of 2001 on 19.07.2001 at about 5.00 p.m. Stating therein that his uncle Asghar Ali was on inimical terms with Muhammad Hassan viz, the present appellant. On the same day viz. 19.07.2001 the complainant along with his uncle Asghar Ali came at the garage of Syed Kabeer Shah at Sajawal on motorcycle where Nizam, Muhammad Ashraf and Meer Muhammad also came and while they were chitchatting with each other, Aghar Ali went towards western side of the road to pass the urine and while he was coming back, appellant Muhammad Hassan duly armed with official Kalashinkov emerged there from southern side and while abusing Asghar Ali, he fired 7/8 shots on his head and other parts of the body. Asghar Ali fell down on the ground, blood was oozing, brain matter also came out and he died. Appellant while abusing fled away towards southern side along with Kalashnikov. The complainant leaving the prosecution witnesses at the spot went to the police station and lodged FIR.
3. ' After registration of FIR, investigation was carried out by the police. The Investigating Officer reached the place of incident and prepared mashirnamas of place of wardat, dead body and injury, Danashnama and inquest report. He collected eight empties and bloodstained earth and sent the dead body for postmortem. Thereafter he arrested the appellant from police quarter, sub- jail Sajawal and recovered SMG Rifle from his possession with 22 bullets loaded in magazine, which were sealed in presence of mashirs. After completion of the investigation and other formalities the appellant was challaned before the competent court of law.
4. ' A formal charge was framed against the appellant to which he pleaded not guilty and claimed to be tried.
5. ' The prosecution, in order to prove its case against the appellant, examined PW-1 Muhammad Ashraf (Ex.7), PW-2 Complainant Abdul Haq (Ex.8) who produced FIR (Ex,8/A), PW-3 Nazim (Ex.9), PW-4 Dr.Ghulam Rasool (Ex.11) who produced police letter and postmortem report (Ex.11/A & 11/B), PW-5 Pir Muhammad Rafiq (Ex.12) who produced mashirnamas (Ex.12/A to 12/F), PW-6 Tapedar Nisar Ahmed (Ex.13) who produced sketch (Ex.13/A), PW-7 SIP/I.O. Qurban Ali sketch of place of vardat, ballistic report and chemical report (Ex.14/A to 14/C). Thereafter prosecution side was closed vide statement (Ex.15).
6. ' Thereafter statement of accused under. Section 342, Cr.P.C. (Ex.16) was recorded, in which he denied the prosecution allegations and pleaded that he has falsely been involved in the case due to political enmity with District Nazim namely Shafqat Hussain Shirazi whom he did not cast vote in general elections. However, the accused neither examined himself on oath nor he produced any witness in his defence. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing the counsel for the parties, learned IInd Additional Sessions Judge Thatta vide judgment dated 11.04.2007 convicted the appellant and awarded him death sentence subject to confirmation by this Court.
7. ' The appellant challenged the said judgment by filing Cr. Jail Appeal No,123 of 2007 before this Court which was dismissed vide judgment dated 18.08.2008 and death sentence was confirmed.
8. The appellant assailed the said judgment before the honourable Supreme Court. The honourable apex Court vide judgment dated 28.10.2010 remanded the case to the trial Court for recording appellant's statement under section 342, Cr.P.C. Afresh and then for proceeding with the matter in accordance with the law. On remand, the trial court recorded the statement of the appellant under section 342, Cr.P.C. At Ex.21 wherein while pleading innocence, he stated that he has been falsely implicated in the case at the instance of the then District Nazim namely Syed Shafquat Hussain Shah Sheerazi for the reasons that he did not cast vote to him in the general elections and that there was a dispute over some immoveable property between him and the said District Nazim. He further stated that the deceased had abducted a Baloch lady whereupon her relatives were on inimical terms with him and he might have been killed by them.
9. ' The learned IInd Additional Sessions Judge, Thatta after formulating the points for determination and hearing the counsel for the appellant as well as learned DDPP for the State again convicted the appellant vide judgment dated 18.01.2011 and awarded him death sentence subject to confirmation by this Court, hence this appeal.
10. ' Mr. A. Rasheed Nizamani, learned counsel for the alipellant, has contended that the appellant has falsely been involved in the present case due to enmity with Shafqat Hussain Shah Shirazi, District Nazim. He further contended that prosecution witnesses are related inter se, thus are interested witnesses. He further contended that in the fresh statement of the appellant recorded under section 342, Cr.P.C. After remand by the honourable Supreme Court no question was put to the appellant regarding alleged motive of the murder viz, previous enmity between the appellant and the deceased. He further contended that no private person was associated as mashir of recovery etc. He submitted that appellant is behind the bars for the last 15 years. According to him, crime empties were sent to the expert with considerable delay and that the crime weapon viz. Kalashnikov was never produced before the trial court. His alternative argument was that death sentence may be converted into life imprisonment.
11. ' Conversely, learned A.P.G. Appearing for the State while supporting the impugned judgment, contended that there is no delay in lodging the FIR; that evidence of the prosecution witnesses is consistent on material aspects of the matter; that although the witnesses are related to the complainant but since their evidence is consistent and no material contradictions have been pointed out in their evidence, such evidence is reliable and confidence inspiring; that the crime weapon has been recovered from the possession of the appellant; that the medical evidence is in conformity with the ocular testimony. He prayed for dismissal of the appeal and confirmation of death sentence. In support of his contentions, he relied upon the case-law reported in 2010 SCM R 650, PLD 2006 SC 273, 1995 SCM R 693 and 2000 SCM R 163.
12. ' We have heard learned counsel for the appellant as well as learned A.P.G. Appearing for the State and perused the evidence on the record.
13. ' We have gone through the evidence of eye-witnesses in the case namely complainant Abdul Haque and P.Ws. Mohammad Ashraf and Meer Mohammad. They have categorically stated in their evidence before the trial Court that they saw the accused/appellant while committing the murder of deceased Ashgar Ali. It appears that the common plea taken by the appellant in his previous statement recorded under section 342, Cr.P.C. As well as in his statement recorded after remand of the case, was that he has been falsely implicated in the case due to enmity with one Shafqat Hussain Shah Sheerazi, the then District Nazim, as the appellant did not cast vote to him in the general elections, besides there was also dispute over some landed property between the parties and that deceased Asghar Ali had enticed away one Baloch lady due to which her relatives were on inimical terms with him and that on the day of incident there was strike call from Awami Tehrik due to which firing also took place in between the police and public and taking advantage of such strike and firing, they might have killed Asghar Ali. No material was produced by the appellant during the trial to establish such pleas, nor any witness was got examined by him to prove such assertion in absence whereof bare words of the appellant cannot be believed. If, for the sake of argument, plea of the appellant regarding killing of the deceased by the relatives of the above said Baloch lady, allagedly enticed away by the deceased, is accepted, even then it is not understandable that as to why the complainant and prosecution witnesses who are admittedly related to the deceased would spare the real culprits and involve the innocent person. If the reason for such false involvement is the alleged enmity with' the appellant, then equally, according to the version of the appellant, there would also be enmity between the relatives of the aforesaid Baloch lady and the complainant party. Furthermore, considering the plea of the appellant that there was strike and firing on the day of the incident, it may be observed that it also does not appeal to mind that anyone would dare to open the shop in case there was exchange of firing between the police and the people. It could, however, be believable that during the strike shops etc. Might be open but it is hardly believable that anyone would dare to open his shop in the event of exchange of firing between two groups. Even otherwise in the cross-examination no question was put to the prosecution witness regarding strike of Awami Tehrik or firing on the day of incident except the Investigating Officer who specifically denied such suggestion. Hence the plea that the relatives of Baloch lady taking advantage of strike and the firing might have killed the deceased is not proved.
14. ' So far as the plea of the appellant that after his duty he had deposited the official rifle at the police station and the same was obtained by police from police Mal-Khana and was foisted upon him is concerned, the appellant has not produced a single witness in support of such assertion.
15. Neither he has produced any entry as to deposit of the official weapon in the Mal-Khana nor moved any application and nor even verbally requested learned trial- court to call such record from the concerned police station. In this view of the matter, the words simplicitor of the appellant cannot be believed.
16. ' As regards the contention of the learned counsel for the appellant that the complainant and the prosecution witnesses are related to the deceased, thus they are interested witnesses and their evidence is not worth-reliance, it may be observed that mere relationship with the deceased is not criteria to discard their testimony and they could not be termed as interested witnesses. In the case reported in PLD 2004 SC 371 the honourable Supreme Court held that mere relationship of witnesses with the deceased would not detract their veracity who had absolutely no motive of their own to involve the accused. In the case reported in 2010 SCM R 650 it was held by the honourable Supreme Court that relationship of ocular witnesses with the deceased, ipso facto, would not reflect adversely against their veracity, in the absence of any motive on their part for false involvement of accused in the case. In the case reported as Raqib Khan v. The State (2000 SCM R 163) Honourable Supreme Court held as under:- "The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir Hussain v.
17. State (PLD 1965 SC 188). In Aslam and another v. The eState (1997 SCMR 1284), a Full Bench of this Court had reiterated the law on this score that, "in the final analysis, it is neither the relationship of the witnesses with the deceased or that of the P. Ws. Inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is ultimately inherent worth of evidence of a witness that determines his reliability".
18. ' In the instant case the incident was witnessed by PWs Muhammad Ashraf and Nizam. Their evidence is consistent with each other and they have corroborated the version of the complainant and the learned counsel for the appellant during the course of his arguments did not say even a single word that there is inconsistency or contradiction in the evidence of the prosecution witnesses. Their evidence is also in consistence with the medical evidence. The crime weapon has been recovered from the appellant in presence of mashirs and the appellant failed to produce any material on record to show that the official weapon was deposited in the police Mal-Khana. There is no delay in lodging of the FIR as allegedly the incident took place at 1630 hours whereas the FIR was registered within half an hour at 1700 hours hence there is no possibility of concoction of false case against the appellant.
19. ' The contention of the learned counsel for the appellant regarding violation of section 103, Cr.P.C. Is also devoid of force for the simple reason that in the instant case neither warrants were issued by the Magistrate for the search of the appellant's house nor the police had searched his house for the purpose of recovery of crime weapon. In our considered view, in these circumstances, strict compliance of section 103, Cr.P.C. More particularly in a case where the incident has been witnessed by three eye-witnesses whose evidence is also consistent with each other and so also with the version of the complainant taken in the FIR.
20. ' As regards the contention of the learned counsel for the appellant that the Kalashnikov used in the offence was never produced before the trial Court, suffice it to refer to the deposition of mashir namely Pir Mohammad Rafique who stated in clear terms, "Accused present in custody and so also property viz. Rifle and bullets are same. The clothes available in court are also same."
21. ' While considering the quantum of sentence awarded to the appellant, we do not find any mitigating or extenuating circumstances available on record so as to justify for awarding lesser, punishment for life to the appellant. The appellant had committed cold-blooded murder of the deceased, therefore normal penalty of death awarded by the trial Court seems to be justifiable.
22. ' It may be mentioned here that while reserving the matter for judgment, learned counsel for tife appellant as well as learned A.P.G. Were required to submit their respective case law within two days. In compliance with the said direction learned A.P.G. Has submitted the case-law but the same has not been produced by the learned counsel for the appellant so far.
23. ' The upshot of above discussion is that the prosecution has proved its case against the appellant beyond reasonable doubt on material aspects. No illegality/irregularity, infirmity or mis- appreciation of evidence is found in the impugned judgment. Accordingly, the instant appeal is dismissed. The conviction and sentence awarded to the appellant by the learned trial Court is maintained and consequently the confirmation reference is answered in affirmative.