' SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No,342 of 2010 titled as Muhammad Farooq v. The State filed by Muhammad Farooq, appellant against his conviction and sentence, Criminal Appeal No,509 of 2010 Mushtaq Ali v. Anwar-ulHassan etc. Instituted by Mushtaq Ali, complainant against the acquittal of Anwarul-Hassan, Muhammad Shafiq and Aziz- un-Nisa, co-accused of the appellants and Murder Reference No,43 of 2010 titled as The State v.
Muhammad Farooq sent by the learned trial court for confirmation or otherwise of sentence of death awarded to the appellant under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 27.05.2010 passed by the learned Addl. Sessions Judge, Rawalpindi in a case FIR No,294 dated 15.08.2008, offences under Sections 302, 324, 34 and 109, P.P.C. Registered at Police Station Murree District Rawalpindi, whereby the appellant was convicted under Section 302(b), P.P.C. And sentenced to death with the direction to pay ' Rs,2,00,000/- as compensation to the legal heirs of deceased Khalid Mehmood, as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for six months. The amount of compensation shall also be recoverable as arrears of land revenue.
' The learned trial court, however, through the same judgment acquitted Anwar-ul-Hassan, Aziz- un-Nisa and Shafiq, co-accused of the appellant while giving them the benefit of doubt. Hence, Criminal Appeal No,509 of 2010 that already stands dismissed to the extent of Aziz-un-Nisa and Shafiq.
2. Brief facts of the case, as disclosed by Mushtaq Ali, complainant (PW-1) in his statement (Exh-PA) on the basis of which formal crime report (Exh-PA/1) was recorded, are that he is resident of Mauza Bandi Gali Dakhli Parhanna. On 15.08.2008 at about 08.00 a.m, he was present in his house when his son Khalid Mehmood (deceased) came down stairs on road to board her daughter Mst. Anusha Khalid for school and was standing on road side waiting for the vehicle. Meanwhile, Mst. Aziz-un- Nisa wife of Farooq (appellant) called her son Anwar-ul-Hassan and husband Farooq while coming from her house to upwards that Khalid Mehmood who had abused her, had come on road and should not go alive. On hearing the voice of Mst. Aziz-un-Nisa, he (complainant) also started walking towards the road and saw that Muhammad. Farooq, appellant armed with .30 bore pistol and his son Anwaar-ulHaq, accused (since acquitted) armed with .12 bore gun who were sitting ambushed on road side, suddenly made firing at his son Khalid Mehmood (deceased) and his granddaughter Mgt. Anusha Khalid. The firing made by Farooq hit his son whereas the fire made by Anwar-ul-Hassan hit his granddaughter Mst. Anusha Khalid. After receiving fire, Khalid Mehmood fell down at the spot. During the occurrence, Muhammad Shafique, son-in-law of Muhammad Farooq was standing in front of house of his father-in-law and witnessed the same. On hearing the sound of firing, Qamar Ali (PW2) and Gul Bahar Akhtar (given up PW) also came there while witnessing the occurrence. Muhammad Farooq etc. Fled away from the spot along with their weapons.
' The motive behind the occurrence, as disclosed by the complainant in Exh-PA, was that on 13.08.2008, a quarrel took place between Khalid. Mehmood and wife of Farooq due to which the accused persons have committed the murder of his son Khalid Mehmood and caused injury to Mst.
Anusha Khalid.
3. Muhammad Farooq (appellant) was arrested in this case on 07.09.2008 by Nazeer Ahmad, SI (PW-13) who, on 08.09.2008, while in police custody, after making disclosure, got recovered .30 bore pistol (P-7) along with its license (P-8) which was taken into possession by the investigation officer vide recovery memo Exh-PF. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court. The learned trial court, after due process of law, framed charge against the appellant and his co-accused (since acquitted) to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as fourteen witnesses during the trial whereas, Muhammad Yaqoob, ASI was examined as Court Witness (CW-1). Mushtaq Ali, complainant (PW-1) and Qamar Ali (PW-2) furnished the ocular account of the case. Mukhtar Ali 335/C (PW-7) and Anwar-ulHaq C/7632 (PW-8) are the witnesses, of recovery of crime weapon at the instance of the appellant.
' The medical evidence was furnished by Dr. Waheed Afsar Bajwa (PW-10) who, on 15.08.2008 at 12.45 p.m. Conducted the post mortem examination on the dead body of Khalid Mehmood, deceased and noted the following injuries:-- "1. There was circular wound 1 x 2 cm with blackish surroundings with irregular margins over lateral aspect of left arm nearly 21 cm away from shoulder. Most probably entry wound. There was oval shaped lacerated wound 2.5 x 1 cm Over left arm medially 10 cm away from axilla. This was exit wound.
2. There was rounded wound over left hypochondrium 3.5 x 1.5 cm in size below left nipple with blackish surrounding. Most probably entry wound. There was lacerated wound 1.5 x .5 cm at left hip joint 12 cm from iliac crest laterally. It was exit wound.
3. There was 1.5 x 1 cm rounded wound, 10 cm above medial mellolus (right ankle joint) with blackish surrounding. There was 2 x 1 cm oval shape wound 7 cm above lateral mellolus (right ankle joint).
4. Two lacerated wounds and bone eruption at 7 cm above right ankle."
' In his opinion, the most probable cause of death was firearm injuries because there were clear entry and exit wounds. Abdominal organs and aorta were badly damaged. The bullet crossed all abdominal cavity by badly crushing and rupturing the abdominal organs. The probable duration between injuries and death was 3 to 5 minutes and between death and post mortem examination was about 2 to 3 hours.
' He, on the same day i.e, 15.08.2008 also medically examined Mst. Anusha Khalid, injured and noted the following injury on her person:-- "1. There was lacerated wound on the dorsal aspect of right hand which appeared entry wound of fire arm pellet measuring, 1 x 1 cm. There was no exit wound and pellet was retained inside and visible on X-Ray, it was muscle deep."
' The injury was declared Jurh Ghyr Jatfah Mutlahimah punishable under Section 337-F(iii), P.P.C.
And was caused by firearm weapon.
' Gulistan Khan, Inspector (PW-I1), Mazhar Ikram, SI (PW-12) and Nazeer Ahmad, SI (PW-13) are the Investigation Officers of this case whereas, rest of the witnesses are formal in nature. Learned - Deputy District Public Prosecutor gave up Gul Bahar Akhtar and Shabbir Ahmad, SI being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh-PT), report of Serologist (Exh-PU) and that of Forensic Science Laboratory (Exh: PV and Exh-CW-1), closed the prosecution evidence.
5. The statements of the appellant and his co-accused (since acquitted) under Section 342 of the Code of Criminal Procedure, 1898, were recorded wherein, they refuted the allegations levelled against them and professed their innocence. In reply to .a question that as to "Why this case registered against you and why the PWs have deposed against you?, the appellant replied lines as under:-- ' "I am innocent. I have been falsely involved in this case. The complainant of this case in connivance with the police, got me and my family members i.e, my son Anwaar ul Hassan my wife.
Aziz un Nisa and my son in law Muhammad Shafiq in this case. The deceased Khalid Mehmood was not man of good character and was dare devil and desperate, he used to harass the neighbourer and poor persons of locality as well, used to malice the woman folk. It was un-witnessed murder.
Complainant, his son and his brother's son alleged eye-witness of occurrence were not present at the time of alleged occurrence, not they saw the occurrence. I was involved in this case by the complainant party due to suspicion and I had absolutely no motive, whatsoever, to commit the murder of deceased. It is pertinent to mention that two days prior to the present occurrence, my wife Aziz un Nisa moved an application against the deceased and on account of suspicion and personal grudge, complainant and PWs involved me and my family in the present case. I am poor man and offer my prayer five time a day. I am pious person and father of young daughters and I am innocent. Complainant has concocted after thought, false and baseless story relating to murder of deceased and involved me and my other family members above mentioned above in this case after thorough deliberations and consultations."
6. The appellant neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him nor did he produce evidence in his defence.
7. The learned trial .Court vide its judgment dated 27.05.2010, found the appellant guilty, convicted and sentenced him as mentioned above.
8. Learned counsel for the appellant, inter alia, contends that the appellant has falsely been implicated in this case due to previous grudge; that there is delay of about two hours and forty-five minutes in reporting the matter to the police; that both the eye-witnesses are interested witnesses as they are related inter se and with the deceased; that both the eye-witnesses are having inimical background with the appellant; that the prosecution has not produced Mst. Anusha Khalid, injured, therefore, an adverse inference is to be drawn against the prosecution; that the medical evidence is in conflict with the ocular account; that the alleged recovery of crime weapon at the instance of the appellant is inconsequential as the crime empties and the crime weapon were sent to the Forensic Science Laboratory on the same day; that the prosecution remained fail to prove the motive against 'the appellant; that three co-accused of the appellant namely, Mst. Aziz-un-Nisa, Muhammad Shafique and Anwar-ul-Hassan have been acquitted by the learned trial court and the evidence which has been disbelieved qua the acquitted co- accused persons cannot be believed against the appellant until and unless 'there is sufficient incriminating corroboration which is very much lacking in this case; that the prosecution has failed to prove its case against the appellant beyond any shadow of a reasonable doubt; that this appeal may be accepted, conviction and sentence of the appellant may be set aside, he may be acquitted and the Murder Reference be answered in the negative.
9. Conversely, learned Assistant District Public Prosecutor assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia, maintains that there is no deliberate or conscious delay in reporting the matter to the police; that Mst. Anusha Khalid, injured was a minor, therefore, she was not, produced before the learned trial court; that it is a prerogative of the prosecution to produce as many witnesses as it thinks fit and it is the quality and not the quantity of evidence which weighs with the courts; that conviction can be passed on the basis of testimony of interested and inimical witnesses if their statements are trustworthy and reliable; that prosecution case finds corroboration from the medical evidence; that the prosecution case is further corroborated by the evidence of recovery of crime weapon at the instance of the appellant and positive report of the Forensic Science Laboratory (Exh-CW/1); that the motive part of the occurrence has not been denied by the defence; that case of the acquitted co-accused is distinguishable from that of the appellant; that the prosecution has proved its case against the appellant beyond the shadow of any reasonable doubt; that this appeal may be dismissed and the Murder Reference be answered in the affirmative. Further craves that the prosecution has also proved its case against the acquitted co- accused persons for which Criminal Appeal No,509 of 2010 has been filed against their acquittal; that they may also be convicted and sentenced under the law.
10. We have heard the arguments of learned counsel for the appellant, learned Assistant District Public Prosecutor assisted by learned counsel for the complainant and also scanned the record with their assistance.
11. We have observed that the occurrence of this case took place at' 08.00 a.m. On 15.08.2008 on the roadside from where the deceased was rescued to hospital at Murree in injured condition who succumbed to the injuries on the way and when the police reached at Murree Hospital, the matter was reported at 10.45 a.m. While the crime report was registered at 12.15 p.m. On the same day whereas the distance between the place of occurrence and the police station was fifteen miles and even the post mortem examination on the dead body of the deceased was conducted at 12.45 p.m. On the same day i.e, within half an hour of the registration of the case. In this view of the matter, we are of the opinion that the matter was reported to police in natural course of events.
12. To prove its case against the appellant, through the direct evidence, the prosecution has produced Mushtaq Ali, complainant (PW-1) and Qamar Ali (PW-2). Both these witnesses are natural witnesses too being residents of the same locality and moreover they have given plausible reason for being available at the scene of occurrence. They have consistently assigned to the appellant the role of causing firearm injuries on the person of the deceased Khalid Mehmood. They were cross-examined at length by defence but no material and noticeable discrepancy in their statements, to the extent of role of Muhammad Farooq, appellant and the mode and manner of actual occurrence, could be surfaced. They remained consistent with each other in this regard.
Learned defence counsel could not shake the confidence of the eye-witnesses who adhered to their stance taken by them on the day of fateful incident and nothing beneficial to the appellant could be obtained. The unswerving statements of the eye-witnesses against the appellant particularly, also remained free from dishonest improvements. Both the parties are previously acquainted with each other and no question of mis-identification arises. Both Mushtaq Ali, complainant (PW-1) and Qamar Ali (PW2), father and paternal cousin, respectively, of the deceased cannot normally be expected that they would let the real culprit of murder of their near and dear one go scot-free by implicating the appellant giving him the role of causing firearm fatal injuries to the deceased, so in this case, the question of substitution, which even otherwise is a rare phenomenon, also does not arise. Mere relationship of the witnesses with the deceased or inimical background of the parties is not sufficient to discredit their evidence. The testimony of even a worst enemy can be made basis for the conviction if it is otherwise confidence inspiring, cogent, trustworthy and of unimpeachable Character. Reference in this regard is respectfully made to a venerated judgment passed in the case of Muhammad Saleem v. The State (2010 SCM R 374), wherein, the Hon'ble Supreme Court was pleased to observe as under:-- "5. ...General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought..."
' Same view was reiterated by the Hon'ble Supreme Court in the case of Niaz-ud-Din and another v.
The State and another (2011 SCM R 725).
' In view of above, in this case testimony of the eye-witnesses cannot be distrusted only on the basis of relationship of the deceased with them and we find the same coherent and trustworthy.
' As regards the contention of learned counsel for the appellant that the prosecution has not produced Mst. Anusha Khalid, injured to prove the ocular account, therefore, an adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984 is to be drawn against the prosecution, we have observed that Mst. Anusha Khalid, injured, as per her medico-legal report (Exh-PJ) was aged about six years and it is quite believable that she was not produced before the learned trial court due to her incompetency being a child of tender age. Furthermore, it is the quality and not the quantity of evidence which weighs with the courts, therefore, in our view non-production of Mst.
Anusha Khalid is not fatal for the prosecution, especially to the extent of appellant Muhammad Farooq.
' We have also given due consideration to the argument furnished by the learned counsel for the appellant that the learned trial court has acquitted co-accused Anwar-ul-Hassan, Aziz-un-Nisa and Shafiq while disbelieving the same prosecution evidence and being so conviction of the appellant cannot be based upon the same untrustworthy and discredited evidence but are of the opinion that the rule of falsus in uno falsus in omni bus is not recognized in our judicial system and here in Pakistan courts are burdened to sift grain from the chaff that has rightly been done in this case. The case of the appellant is manifestly on different footing from that of his co- accused persons as the role of causing firearm injuries to the deceased consistently assigned to the appellant by the eye-witnesses is duly corroborated by the medical evidence, evidence of motive and supported by the result of unchallenged investigation while Aziz-un-Nisa, Shafiq, co-accused caused no injury to any one rather have been burdened with artificial roles. As regards co-accused Anwar-ul-Hassan who allegedly caused a minor firearm injury to minor daughter of the deceased, we have observed that he was not having any motive to hurt Anoosha Khalid. The prosecution remained fail to produce X-ray report of injury available on the person of minor girl to corroborate the statement of Dr. Waheed Afsar Bajwa (PW-10) regarding the availability of a pellet under the injury reflected in her medico-legal examination certificate. Admittedly, Radiologist was also' not produced to prove the same fact. Even name of Mst. Anoosha Khalid was admittedly not mentioned in the X-ray report annexed with the judicial file. Moreover, per Medical Officer (PW-10), she sustained a lacerated firearm wound on the dorsal aspect of right hand but according to Nazeer Ahmad, SI (PW-13), the investigation officer, it was an abrasion only. Blood stained clothes of Mst. Anoosha Khalid were not taken into possession to produce before the learned trial court nor the injured ever appeared to depose. During the investigation, respondent/co-accused Anwar-ul- Hassan was found innocent. The report of Forensic Science Laboratory (Exh-PV) also reflects adverse to the prosecution case. He did not cause any injury to the deceased even per prosecution's own case. We have also noticed that the complainant Qamar Ali (PW-1), seems confused during his cross-examination regarding the manner of causing injuries to Mst. Anoosha Khalid by D Anwar-ul-Hassan, co-accused. Hence, the contention of learned counsel for the appellant that he also deserves acquittal on the bases of acquittal of his co-accused is not tenable.
13. The prosecution case against the appellant also finds corroboration from the medical evidence as ante mortem firearm injuries, on the person of deceased Khalid Mehmood attributed to the appellant by' the eye-witnesses are reflected in the post mortem examination report (Exh-PH) which became the cause of his unnatural death as opined by the Medical Officer Dr. Waheed Afsar Bajwa (P W-10).
14. As far as the motive part of the occurrence is Concerned, we have observed that beside the consistent and firm stance of PW-1, the motive occurrence and filing of an application (Exh-DA) by Aziz-un-Nisa, co-accused (since acquitted) are admitted F facts as is evident from the .Document (Exh-DC) and the suggestions put to the witnesses by the learned defence counsel during the cross-examination. Hence, we believe that the motive stands proved.
15. So far as the evidence of recovery of .30 bore pistol (P-7) at the instance of Muhammad Farooq, appellant and positive report of the Forensic Science Laboratory (Exh-CW/1) is concerned, we have noticed that six crime empties were secured from the place of occurrence on 15.08.2008, the appellant was arrested in this case on 07.09.2008 and the pistol was allegedly recovered at his instance on 08.09.2008 whereas both, crime empties and .30 bore pistol were sent to the said Laboratory on 16.09.2008 i.e, after about one month of the occurrence and after nine days of the arrest of the appellant. It is, by now, a well established proposition of law that if the crime empties are sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of Jehangir v. Nazar Farid and another (2002 SCM R 1986), Israr Ali v.
The State (2007 SCM R 525) and Ali Sher and others v. The State (2008 SCM R 707). In Israr Ali's case, the Hon'ble Supreme Court has observed that when the crime empties are sent to Forensic Science Laboratory with delay, the recovery of the same does not provide strong corroboration qua the prosecution version.
16. In the light of above discussion and having guidance from the esteemed judgments passed by the Hon'ble Supreme Court of Pakistan in the case of Musa v. The State (2008 SCM R 997), we are of the opinion that even if we exclude the evidence of recovery of crime weapon from consideration, the prosecution has successfully proved its case against the appellant through confidence inspiring ocular, account furnished by Mushtaq Ali, complainant (PW-1) and Qamar Ali (PW-2) which is strongly corroborated by the medical evidence, evidence of motive against the appellant, coupled with support of result of investigation that has led us to I an irresistible conclusion that the learned trial court has rightly convicted the appellant through the impugned judgment.
17. Now coming to the quantum of sentence awarded to the appellant; we have noted certain mitigating circumstances in his favour calling for reduction in quantum of his sentence. Firstly, we have declared the alleged recovery of crime weapon at the instance of the appellant as doubtful.
Secondly, all three co-accused of the appellant have been acquitted not only, by the learned trial court but Criminal Appeal No,509 of 2010 instituted against the acquittal already stands dismissed by this Court to the extent of co-accused Aziz-un-Nisa and Shafiq vide order dated 21.04.2014 and we have also found the prayer clause of the mentioned appeal untenable regarding Anwar-ul- Hassan co-accused as well, therefore, in our opinion alternative sentence of imprisonment for life to Muhammad Farooq (appellant) shall meet the ends of justice. In this regard, guidance is respectfully sought from the case of Muhammad Riaz and another v. The State and another (2007 SCM R 1413) and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCM R 1034).
18. For what has been discussed above, the conviction of the appellant under Section 302(b), P.P.C.
Is maintained but his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him and imprisonment in default thereof is also maintained. He is, however, extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
19. Consequently, with the above modification in quantum of sentence of the appellant, Crl. Appeal No,342 of 2010 filed by the appellant is hereby dismissed.
20. As regards Criminal Appeal No,509 of 2010 filed by Mushtaq Ali, complainant against the acquittal of Anwarul-Hassan, in view of our above observations in paragraph No,12, the same is hereby dismissed and notice issued to respondent/accused Anwar-ul-Hassan is hereby withdrawn.
21. Murder Reference No,43 of 2010 is answered in the NEGATIVE and sentence of death awarded to Muhammad Farooq (convict) is NOT CONFIRMED.