SHAKEEL AHMED BALOCH, J.---This common judgment disposes of Criminal Appeal No. 238 of 2014 filed by Shah Faisal son of Ali Gohar and Criminal Jail No. 32 of 2015 filed by Rashid Hussain son of Sajjad Hussain through the Superintendent Central Prison Mach, against the judgment dated 8th September 2014 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge-VI, Quetta (hereinafter as, "the trial Court"), whereby the appellants were convicted and sentenced under Section 302(b) for life imprisonment with fine of Rs.300,000/- (Rupees three hundred thousand) each as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased Syed Muhammad Asghar Shall and in default thereof to further suffer S.I. For two (2) years, with the benefit of Section 382-B Cr .P.0 .
2. Facts of the case are that on 8th April 2012 at 8:50 a.m. The complainant Syed Najeeb-ud-Din son of Syed Haji Salah-ud-Din registered FIR No. 66/2012 at Police Station City, Quetta under Sections 302, 34, P.P.C., stating therein that he is residing at Sindhi Street and has established an office for business purposes. On the fateful day he came to Sunheri Masjid, Abdul Sattar Road, Quetta early in the morning for offering Fajar prayer. At 5:40 a.m. When he was at the gate of masjid, saw his nephew Syed Muhammad Asghar running towards Prince Road, while two police officials, one ASI and a constable duly armed with Kalashnikov, were chasing him, as such, he also went behind them. When they reached Sarafa street, Abdul Sattar Road, meanwhile the police personnel made firing upon his nephew, who fell down. The police took his nephew to the civil hospital. He also reached there and found his nephew expired. Later on he came to know about the names of the police officials as Shah Faisal, ASI and Rashid Hussain, Constable (appellants), who killed his nephew by making firing. It is further averred that the accused Shah Faisal, ASI was duly armed with pistol.
3. In pursuance of above FIR, investigation was conducted by PW-8 Muhammad Taqi, SI, who during investigation, prepared the site sketch and site inspection memos; recorded the statements of the witnesses under section 161, Cr.P.C. Took the blood-stained earth and sealed it in parcel No.1 in presence of the witnesses; went to the hospital and took into possession the bloodstained clothes of deceased and sealed the same in parcel No.2 in presence of the witnesses; recorded the statement of the driver Javed Akhtar under section 161, Cr.P.C; took into possession a Kalashnikov, magazine and 25 live cartridges and a 30 bore T.T. Pistol along with photocopy of license in the name of accused Shah Faisal through Fards and prepared parcels Nos.3 and 4; arrested the accused/appellants; obtained their remand; recorded the statement of eye-witness Ghulam Farooq, rickshaw driver and witness Syed Jamal Abdul Nasir; obtained the postmortem report of the deceased on 18.04.2012; on completion of remand of the accused persons prepared and submitted incomplete challan; received the FSL reports and on completion of investigation prepared the challan and submitted the same before the Court.
4. At the trial, the prosecution produced eight witnesses, whereafter the appellants were examined under Section 342, Cr.P.C. The appellants recorded their statements on oath under Section 340(2), Cr.P.C. And also produced Javed Akhtar DW-1. Muhammad Rafiq DW-2 and Nadeem Awan DW-3 in their defence. On conclusion of trial, the appellants were convicted and sentenced as mentioned he re inabove .
5. Learned counsel for the appellants stated that the impugned judgment is result of misreading and mis-appreciation of the evidence available on record; that the prosecution evidence is full of discrepancies, dishonest improvements and false accusation, but the same has wrongly been made a basis for awarding conviction and sentence to the appellants; that the act done by the appellants is protected under Sections 76 and 80, P.P.C., thus no case at all is made out against the appellants; that all the witnesses are the close relatives of deceased and the complainant, thus their evidence is not worth credence, hence the case of prosecution is lacking independent corroboration; that the facts and circumstances of the case reflect that all the prosecution witnesses are planted by the complainant party; that the prosecution has miserably failed to prove the charge against the appellants.
6. Learned Additional Prosecutor General assisted by the learned counsel for the complainant while supporting the conviction and sentence stated that sufficient incriminating evidence is available on record to establish the charge against the appellants, who in furtherance of their common intention initially demanded illegal gratification of Rs.7000/-, snatched two mobile phones and cash amounting to Rs.750/- from the deceased and when the deceased tried to escape was fired upon, which hit the vital part of his body i.e. Head, which caused his death, thus admittedly the act done by the appellants by shooting the deceased at his vital part of the body is not covered by Sections 76 and 80, P.P.C.; that the evidence brought on record has rightly been appreciated by the trial Court while awarding conviction to the appellants.
7. Heard the learned counsel for parties and perused the available record. Perusal of record reveals that the unnatural death of deceased Syed Muhammad Asghar Shah is not disputed. The defence admitted the unnatural death of deceased, but pleaded false implication. The post mortem report Ex.P/8-G confirms that the deceased had received bullet injury on his head, which damaged the vital organ i.e. Brain and caused death to the deceased.
8. The complainant appeared as PW1, who reiterated the contents of FIR and brought on record that at the time of occurrence he was present near Soneri Masjid, saw his deceased nephew Syed Muhammad Asghar Shah running and followed by both the accused namely Faisal Shah and Rashid Hussain having pistol and Kalashnikov, respectively, hence according to PW-1 he also followed them and saw the police making firing upon his nephew at Sarafa Gali, Abdul Sattar Road, due to which he fell down, hereafter the police took the injured in official vehicle, hence he reached Civil Hospital and found his nephew dead. PW4 Jamal Abdul Nasir is another witness of the occurrence, who recorded his statement in line with the statement of PW-1 and confirmed that the deceased was running and he was followed by both the accused Shah Faisal and Rashid Hussain and accused Rashid Hussain made firing upon the deceased. PW-4 in his cross-examination denied the suggestion put by the defence that the police had made aerial firing to get hold of him, voluntarily stated that the accused Rashid Hussain after targeting the deceased made firing.
9. The comparative scrutiny of statements of both PW-1 and PW-4 reveal that both the witnesses correctly narrated the entire story as contained in the FIR and also correctly mentioned the date, time, place of occurrence and the manner in which the alleged crime took place. PW-1 and PW-4 were subjected to lengthy cross-examination, but nothing advantageous came on record in favour of defence rather it has further strengthened the case of the prosecution.
10. The prosecution has also produced independent witnesses namely Ghulam Farooq, who appeared as PW-3 and Syed Muhammad Yousaf who appeared as PW-7. PW-7 is a Rickshaw driver, whose Rickshaw was hired by the deceased for transporting the parcels of dry milk. PW-3 witnessed the entire crime. PW-3 confirmed that the accused Shah Faisal demanded Rs.7000/- as illegal gratification from the deceased and also took away Rs.750/- and two mobile phones from the pocket of deceased, which resulted into quarrel between the accused and the deceased and the deceased started running towards Prince Road, the police followed him and accused Shah Faisal ordered co-accused Rashid Hussain to fire upon deceased, hence 4/5 fires were made. PW- 3 further brought on record that the accused Shah Faisal in his presence told the Moharar of police station that he has murdered a person. The statement of PW-7 is also in line with other witnesses.
Although, the learned counsel for the appellants attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses but in our opinion, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the appellants.
11. The plea of the learned counsel for the appellants that only interested witnesses were produced by the prosecution and the case of prosecution is lacking independent corroboration, suffice to state here that all the witnesses are not interested witnesses rather PW-3 and 7 are independent witnesses and the defence has failed to bring any previous link of the witnesses with the complainant party. Both the witnesses have proved their presence at the place of occurrence. Even otherwise, if for the sake of arguments it is admitted that the witnesses were having any relationship with the complainant or deceased, even then their evidence cannot be discarded from consideration they have been found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. Even otherwise, the evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration. Reliance in this regard is placed on the case of Muhammad Akram v. The State reported in 2015 YLR 116. The relevant portion thereof is reproduced herein below:-- "It was urged before us that they are interested witnesses and being close relatives of the deceased, their testimony cannot be believed. No doubt, they are related, but mere relationship is no basis to discard their evidence.
Furthermore, by no stretch of imagination they can be considered to be interested witnesses. An interested witness, as laid down by this Court on a number of occasions and particularly in the case of Niaz v. The State (PLD 1960 SC 38), is a person, who has a motive to falsely implicate a person."
' Reliance in this regard may also be placed on the case of Abdur Rauf's case (2003 SCMR 522), the relevant portion whereof reads as under:- ' The eye-witnesses in the present case undoubtedly are related to the deceased but they have been found entirely independent and truthful, therefore, their testimony without looking jar any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration."
12. It is also necessary to mention here that PW-1/complainant is real uncle of the deceased. It is hard to believe that he would substitute the accused/appellants for the real culprits, who had committed murder of his deceased nephew. Needless to observe that substitution is a rare phenomena. Reliance in this regard may be placed on the case of Allah Ditta's v. The State, reported in PLD 2002 SC 52 and the case of Haft Ali Shan v. The State reported in 2001 PCr.LJ 1320.
13. The case of prosecution has further been strengthened due to recovery of crime weapons from the possession of the appellants. PW-6 being Incharge of Maalkhana confirmed the issuance of Kalashnikov along with 30 cartridges to accused Rashid Hussain and confirmed that the accused did not return 5 cartridges. Admittedly, the said 5 cartridges were used in making firing upon the deceased.
14. Now diverting to defence plea of the appellants, suffice to observe here that the appellants could not record their statements on oath under Section 340(2), Cr.P.C. However, the trend of cross-examination reveals that the appellants have taken two different pleas. Firstly, they flatly denied the allegations oi making firing upon the deceased and created an impression that the deceased was murdered by the Security Guards deputed in Sarafa Galli, but no evidence has come on record to corroborate the plea of the appellants. Even otherwise, it has been established on record that the deceased was empty handed and he had no malice intention, thus it would seem to be illogical to believe that the deceased was murdered by the Security Guards and that too without any rhyme or reason.
15. Now adverting to the second plea of the appellants that their act is protected under Sections 76 and 80 of the Pakistan Penal Code for the reasons that they at the relevant time were on official duty wearing official uniform and in discharge of such duty the offence was unintentionally committed. For facilitation the same is reproduced herein below:-- "S. 76 Act done by a person bound, or by mistake of fact believing himself bound, by law:--- Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
S. 80 accident in doing a lawful act:-Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.",
16. The comparative study of above cited Sections to that of material brought on record in the instant case clearly establishes the fact that the act of the accused cannot be covered by the above cited sections, as they have committed brutal murder of deceased intentionally, because Section 80, P.P.C. Enunciates immunity from an offence which is done by accident or misfortune, in doing of a lawful act, in a lawful manner, by proper means and proper care and caution. As, both these sections provide protection in particular circumstances and those facts and circumstances, which are lacking in the case in hand.
17. As mentioned in preceding paras, the defence has put suggestions upon some of the witnesses that the accused had made aerial firing, but unfortunately the same hit him, but to the contrary it has been established through the statements of prosecution witnesses that no aerial firing was made rather the accused Rashid Hussain on the directions of accused Shah Faisal targeted the deceased and made firing. It has been established on record that the deceased was transporting dry milk and he was not in possession of any weapon or explosive. Nothing has come on record that the deceased was having any weapon or he was a threat to the lives of police officials, thus the murder of the deceased by the accused is brutal in nature and is a classic example of mis- exercise of authority by the police officials, whereby an innocent person lost his life due to greed and cruelty of the police. The police could have apprehended the deceased by chasing him or making aerial firing and even in case of any danger or threat to their own lives the police at the most could hit the deceased on his non-vital parts of body, but this has not been done so, and the deceased was hit on his vital part of body, which resulted into his murder. In garb of their official duties, neither the police can be allowed to murder innocent people nor the general public can be left at the mercy of greedy and cruel police officials. Even otherwise, for the sake of arguments it is accepted that the deceased was a notorious criminal and he was wanted in any criminal case and/ or criminal cases were pending against him, still it was open to no one to take his life in the manner and fashion it has been seemingly taken by the accused police officials. Reliance in this regard is placed on the case of Allah wasayo v. State 2011 YLR 2194, relevant portion is reproduced herein below:-- "Even if for the sake of arguments it is accepted that Zulfiqar Ali was a notorious criminal and he was wanted in criminal case and/or criminal cases were pending against him, still it was open to no one to take his life in the manner and fashion it has been seemingly taken by the accused persons named in the complaint. Zulfiqar Ali has been deprived of fair and unbiased trial. Every person is innocent, unless proven guilty through process of court of law."
18. The impugned judgment is not suffering from any misreading or non-reading of evidence available on record warranting interference by this Court.
19. On reappraisal of the evidence available on record it is concluded that the prosecution has successfully proved the charge against the appellants beyond any shadow of reasonable doubt; that all the witnesses remained firm in their deposition; that they fully supported the prosecution version and the defence has failed to cause any dent in the same; that the trial Court after proper appraisal of evidence available on record has rightly awarded conviction and sentence to the appellants; that the appellants have failed to point out any mala fide on the part of the complainant party for their false implication; that the appellants have failed to point out any material contradiction and discrepancy which could benefit the defence version; that there is no error of law, misreading or non-reading of evidence in judgment passed by the trial Court calling for interference by this Court.
' For the above reasons, the appeals are dismissed.