ABDULLAH BALOCH, J. --- This common judgment disposes of Criminal Appeal No, 107/2014, Murder Reference No, 03/2014 and Criminal Acquittal Appeal No: 122/2014, against the judgment dated 18th April, 2014 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge Killah Abdullah at Chaman (hereinafter referred as "the Trial Court"), whereby the appellant Abdul VVasay Son of Abdul Baqi, was convicted under Section 302 sub-section (2) Q&D and sentenced to death as Tazir and he was directed to be hanged by his neck till he is dead. The appellant has also been directed to pay Rs, 200,000/- (Rupees Two Hundred Thousand) as compensation to the legal heirs of deceased as envisaged under Section 544-A, Cr.P.C. and in default thereof to further suffer one (01) year's S.I. Whereas, the accused Abdul Hadi son of Abdul Baqi. Abdul Rashid son of Abdul Ghani and Syed Ali son of Abdul. Hakeem were acquitted of the charge.
2.Facts of the case are that on 18th May, 2012 the complainant Abdul Shakoor son of Khard lodged F.I.R. No, 22/2012, under Sections 302, 337-ADF Q&D Ordinance R/W Sections 147, 148, 149, PPC, stating therein that on the day of occurrence he along with his brother Abdul Wadood were going to Bazar for buying household articles and when they reached near Adda Kahol Levies Check Post, the accused Abdul Wasay and other started being shifted to hospital by his brother Abdul Wadood and son Najeebullah, but when they reached near main gate of Civil Hospital Chaman, suddenly at about 08.00 a.m. accused Abdul Wasay, Abdul- Hadi both sons of Haji Abdul Baqi, Abdul Rasheed son of Abdul Ghani and Syed All sons' of Abdul Hakeem. attacked upon them. It is averred in the F.I.R. that the accused Abdul Wasay was equipped with knife, who repeatedly- inflicted knife blows upon his son Najeebullah, due to which he died at the spot, while accused Abdul Rasheed equipped with knife attacked upon his brother and repeatedly inflicted knife blows to his. brother, due to which he sustained injures, while accused Syed Ali and Abdul Had' beaten him with kicks and fists. The motive behind the occurrence is stated to be a landed dispute.
3.In pursuance of the above FIR, the investigation of the case was entrusted to PW-7 Muhammad Aslam, IP/lO, who during investigation received the documents regarding inquest report under Section 174, -Cr.P.C., took into possession the crime weapons i,e, a knife and a dagger shaped knife from Amir Peter, IP/SHO who had snatched the same from the accused soon after commission of crime; obtained death certificate of deceased and medical certificates of injured, inspected the site and prepared site map arrested the accused; recorded the statements of witnesses under Section 161, Cr.P.C.; took into possession blood-stained clothes of deceased and sent the same to FSL and received the FSL report in affirmative; obtained the Copy of F.I.R. No, 84/2012 already registered against the accused at Levies Thane Chaman; on completion of investigation submitted the challan, while on receipt of FSL report submitted the same through complete challan.
4.At the trial, the prosecution produced seven (07) witnesses, where after all the accused were examined under. Section 342, Cr.P.C. They also recorded their statements on oath under Section 340(2), Cr.P.C. and produced three witnesses in their defence. On' conclusion of the trial and hearing arguments, the learned' Trial Court convicted the appellant Abdul Wasay and sentenced him to death as Tazir, while the accused Abdul Hadi son-of Abdul, Baqi, Abdul Rashid son of Abdul Ghani and Syed Ali son of Abdul Hakeem, were acquitted of the charge. Where after, the appellant Abdul Wasay filed Criminal Appeal No 107 of 2013, while Murder Reference No, 03/2014 has been forwarded by learned Trial Court for confirmation of death sentence or otherwise, while the complainant Abdul Shakoor filed Criminal Acquittal Appeal No, 122/2014 against the acquittal of accused Abdul Hadi son of Abdul Baqi, Abdul Rashid son of Abdul Ghani and Syed Ali son of Abdul Hakeem.
5.Learned counsel for the convict-appellant Abdul Wasay contended that all the prosecution witnesses made contradictory statements an'd dishonest improvements in their depositions before the Court, due to which their testimony is not reliable to base conviction as sufficient doubts have been created in the case of prosecution, hence the case of appellant is on the same footings to that of acquitted accused, but the benefit of such doubts were not extended in lavour of convict- appellant, resulting miscarriage of justice; that the prosecution has only produced the evidence of interested and related witnesses; that the ocular account of testimony is in conflict with medical evidence; that the prosecution has also failed to establish the recovery of crime weapon from the exclusive possession of the appellant rather the same was foisted upon him by the police just to give strength to the case of prosecution; that the defense so taken and establish through independent witnesses was discarded by the learned Trial Court while delivering the impugned judgement; that there are sufficient mitigating circumstances in the case in hand, thus awarding death sentence to the convict-appellant is unwarranted under the law and is very harsh.
6.To the extent of acquitted accused-respondents, it has been argued by the learned counsel that after proper appreciation of evidence, the learned Trial Court has come to just and right decision by acquitting them; that double presumption of innocence is attached to the case of acquittal and interference is unwarranted until and unless it is established that the impugned order of acquittal is perverse and contrary to the record, but perusal of impugned judgment to the extent of acquitted accused it is evident that the same has been delivered in accordance with law.
7.Learned Deputy Prosecutor General assisted by learned counsel for complainant while supporting the impugned judgment to the extent of convict-appellant stated that Trial Court has delivered a well-reasoned judgment by discussing each and every aspect of the case to the extent - of convict-appellant, but it has failed .t9 properly appreciate the same to the extent of acquitted accused; that the prosecution has not only produced direct, consistent, confidence inspiring and solid evidence against the convict-appellant, but also to the extent of acquitted accused, but wrongly the same were discarded to the extent of acquitted accused, hence the impugned judgment is required to be maintained to the extent of convict-appellant and also the accused- respondents are entitled to be convicted and sentenced in accordance with law; that the statements of PWs are not suffering from material contradictions, infirmities or dishonest improvements; that there are no mitigating circumstances to award lesser punishment to the convict-appellant and that after proper appraisal of the evidence available on record the Trial Court has rightly awarded penalty of death to the appellant, which is not open for any interference.
8. Heard the learned counsel and, perused the available record. Perusal of record reveals that the unnatural death of deceased Najeeb Uilah is not disputed. Even the defence has admitted the unnatural death of deceased, but pleaded false implication. The admitted feature of the case is that the occurrence took place at about 8.00 a.m. in the main gate of Civil Hospital Chaman, where the deceased alon gwith his uncle Abdul. Wadood had brought his injured father to hospital, who had received injuries in the earlier incident that had been taken place at about 7.20 a.m. Since, the instant incident took place in front of main gate of Civil Hospital Chaman, thus immediately the deceased was taken inside the hospital, where at about 08.20 p.m. he was examined by PW-6 Dr. Rafiullah, Medical Officer and he issued MLC Ex.P/6, perusal of which suggests multiple major incise wounds on different parts of body of deceased especially on his chest and on left femur and on left tibia.
The inquest report Ex.P/7-B also suggests multiple injuries on the person of deceased: The FSL report Ex.P/7-E also confirms, that the waistcoat and Chaddar of deceased were stained with human blood.
9. Now adverting to ocular testimony, the prosecution has produced seven witnesses. The F.I.R. was lodged on the basis of fard-e-bayan Ex.P/1-A of PW-1 Abdul Shakoor, who in his statement reiterated the contents of fard-e-bayan correctly. PW-1 stated that on the day of occurrence at about 18th May; 2012 he alon gwith his brother Abdul Wadood were going to Bazar, when intercepted near Levies Thana by convict-appellant Abdul Wasay and his accomplices and started quarrelling with them, due to which he received simple injuries, thus was shifted for Civil Hospital Chaman, when on, the main gate of hospital, the accused once again reached there and attacked upon the complainant and others. PW-1 categorically stated that the convict-appellant Abdul Wasay was equipped with knife and he inflicted repeated knife blows to his son Najeeb Ullah, while the accused Abdul Rasheed attacked upon him and his brother Abdul Wadood. PW-1 further deposed that there exists a landed dispute in-between the parties. PW-1 also confirms the arrival of police soon after the occurrence. The statement of PW-1 has fully been supported and, corroborated by PW-2 Abdul Wadood, who recorded his statement in line to the statement of PW-1.
PW-2 narrated the story with regard to their departure from their house towards Bazar and launching attack upon them by accused party near Levies Thana and subsequently the second attack in front of Civil Hospital Chaman. PW-2 has given a specific role of equipping of the convict- appellant Abdul Wasay with knife and inflicting repeated blows to his nephew Najeeb 'Ullah deceased, PW-2 confirms the arrival of police and arresting the culprits from the spot. PW-3 Abdul Muhammad is also the alleged eye-witness of the occurrence, who in his statement stated that at about 8.00 ,a.m. he was present in Barech Road, when received information about the occurrence, thus rushed towards Civil Hospital and found the accused party beating PW-1, PW-2 and the deceased Najeeb Ullah. PW-3 further ascribed a specific role to convict-appellant Abdul Wasay that he inflicted knife blows upon the deceased.
10. We have scrutinized the statements of all the three eye-witnesses of the occurrence with case. The evidence of PW-1 and PW-2 are at different footings from the statements of PW-3.
Though we have noticed some minor improvements in the statements of PW-1 and PW-2, but despite such fact their testimonies are reliable, having weight and can be considered as worth credence. Both the witnesses in identical manner narrated the story of their departure from the house, their interception by the accused near Levies Thana and second attack launched against them in front of main gate of Civil Hospital Chaman. Both the witnesses have attributed specific role to the convict-appellant Abdul Wasay being equipped with knife and inflicting repeated-knife blows upon the person of deceased Najeeb Ullah, due to which the deceased died at the spot. Both the witnesses remained firm in their deposition with regard to date, time, place of occurrence and the manner in which repeated occurrence had taken place. Both the witnesses were cross- examined at sufficient length, but nothing advantageous has come on record giving serious dent to the case of prosecution and overall the defence has failed to shake their testimony: The learned counsel for the appellant emphasized upon such minor improvements in the statements of PW-1 and PW-2 and made an unsuccessful attempt to discredit the case of prosecution, but in our view, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the appellant, when otherwise both -the, parties are residing in the same vicinity and already having civil and criminal disputes with each other and they also knew each other prior to the incident, thus mistaken identity of the convict-appellant with the real culprits is ruled out of consideration. Besides, it, does not appealable to the logic that the PW-1 being father and PW-2 being uncle may substitute convict-appellant with the real culprits, who have mercilessly inflicted knife blows upon the person of deceased till he is dead. Though the witnesses are related to the deceased being his father and uncle, but mere relationship of the witnesses inter se with the deceased is not enough to term them to be interested witnesses. because the presence of both the witnesses at the time and the place of occurrence is natural as due to earlier altercation PW-1 was taken to hospital for his medical treatment. Hence, the prosecution has successfully established the presence of both the witnesses at the spot and witnessing the crime.
11. We have taken into consideration the statement of PW-3 into juxtaposition with the statements of PW-1 and PW-2 and observed that the presence of PW-3 and witnessing the crime at the time and place of occurrence is entirely different. The Investigating Officer has recorded his statement under Section 161, Cr.P.C., on 22nd May, 2012 i,e, on the fifth day of occurrence. The statements of PW-1, PW-2 as well as the contents of fard-e-bayan are completely silent with regard to presence of PW-3 at the place of occurrence. During cross-examination PW-3 could not stand on his own legs and the defence has succeeded, in shaking his testimony and the learned Trial Court has rightly disbelieved his statement, because in presence of the evidence of direct and natural witnesses. the testimony of. PW-3 being chance witness is not helpful to the case of prosecution.
So, excluding the testimony of PW-3 Abdul Muhammad, which can be discarded as that of a chance witness, the evidence of two other eye-witnesses does not suffer from any legal infirmity, including that of disinterestedness. In this regard, we have placed reliance upon the case of Irshad alias Shada v. The State 1992 P.Cr.L.J. 2273. relevant portion is reproduced herein under:--- "There is no force in this argument as well. Mere relationship of a witness with a party does not render him as an interested witness. He becomes interested witness only if he, besides being related to the party producing him, is also inimical with the opposite-party and that too when his evidence does not inspire confidence. In the instant case, no doubt Mst. Rehmat Bibi (P. W. 8) being the mother of the deceased, Mst. Seeman (P. W. 9) being her maternal-niece, and Bashir Ahmad (P.W.10) .being her brother-in-law, were closely related witnesses but they cannot be dubbed as "interested witnesses" because they had no previous animosity with the, opposite- party. So. excepting the testimony of Bashir Ahmad (P.W.10), which can be discarded as that of a chance witness, the evidence of two other eye-witnesses does not suffer from any legal infirmity, including that of interestedness."
12. The case of prosecution has further been strengthened due to immediate arrest of the convict-appellant alongwith crime weapon at the time and the place of concurrence. PW-5 Javed, is the recovery witness of crime weapon i,e, knife, who stated that on the date and time of occurrence was on patrolling duty and when reached near Civil Hospital Chaman, found a crowd of people, hence rushed there and arrested the convict-appellant alongwith the crime weapon, which was taken into possession through recovery memo. The statement of this witness is impartial and worth credence as he had no motive or grudge to substitute the real culprit with an innocent within such short-span of time. This also eliminates chances of claim of substitution of the culprit' particularly when the death of the deceased in claimed manner i,e, at place of incident with knife, is established and never disputed. We would like to take advantage of the case of Akhter Ali v.
State, 2011 SCM R 937, wherein it has been held that,. "...the appellant' was apprehended immediately after the occurrence by the P. Ws. who have absolutely no motive to implicate the appellant" Therefore, the statement of PW-5 has not only corroborated the statements of PW-1 and PW-2, who have shown the presence of convict-appellant at the place and the time of occurrence with crime weapon i,e, knife, but it has corroborated the medical evidence, whereby it has been opined that the deceased was murdered due to injuries inflicted with sharp weapon.
13.The re-appraisal of entire prosecution evidence has established the presence and participation of the convict-appellant along with the crime weapon and causing the murder of deceased with sharp weapon coupled with the fact that the appellant was caught red-handed soon after the occurrence and recovery of dime weapon was also effected from his possession and more particularly at the place of occurrence. The .convict-appellant while recording his statement on oath under Section 340(2), Cr.P.C. has also admitted his arrest from the place of occurrence by the police. The fact remains is that the police had no previous enmity with the convict-appellant to falsely implicate him in the crime, when otherwise the convict-appellant was nominated in the F.I.R. registered promptly. Hence, the prosecution has successfully established the charge against the convict-appellant beyond the shadow of reasonable doubt. 14.Now adverting to the Crl. Acquittal Appeal No, 122 of 2014 filed by the appellant-complainant Abdul Shakoor against the acquittal of accused-respondents Abdul Hadi, Abdul Rashid and Syed Ali, Suffice to observe here that complainant-appellant in his fard-e-bayan and Court statement has levelled specific allegations of assaulting him by the accused Abdul Rashid with knife, while beating him and his brother Abdul Wadood by the remaining accused with kicks and fists and according to the case of prosecution they were-also examined by the doctor but perusal of record reveals that the prosecution has failed to produce the evidence of any medical officer that had examined the