KHADIM HUSSAIN TUNIO, J.---Through instant Cr. Appeal, appellants have impugned judgment dated 05.09.2010 passed by learned III-Additional Sessions Judge, Shaheed Benazirabad in Sessions Case No, 216/1998, whereby he has convicted the appellants under section 265-H(2), Cr.P.C. for an offence punishable under sections 302(b) and 34, P.P.C. and awarded them punishment to suffer R.I. for life and to pay compensation of Rs,100,000/- each to the legal heirs of deceased under section 544-A, Cr.P.C. and in case of non-payment of compensation to further suffer S.I. for two years more. Benefit of section 382(b), Cr.P.C. was extended to the appellants.
2. Briefly the facts of the prosecution case are that complainant Hussain Bux lodged FIR on 07.09.1998 at PS Mehrab Rahu, stating therein that he and his brother Noor Muhammad and other family members were present in house on 06.09.1998 at about 09:00 p.m., a call was made from outside the house and in response they went outside and found Rahim Jatoi, who took the complainant and his brother Noor Muhammad towards his land as he needed help to plough the land by a tractor. They went to the land of Rais Sher Muhammad Unar, which was cultivated by Allah Bux, the Tractor was driven by Barkat Ali Rind, who was also present at the scene along with appellants. The complainant negotiated with the driver namely Barkat Ali regarding the tractor for ploughing the land. After taking the meal, the driver asked them to bring water from the tube-well, since there was no pot available there, they stayed there for about half an hour and when they came back, they were challenged by the appellants that they were backbiting in their absence and that they would not spare them for it. Appellant Allah Bux was alleged to have fired, with his gun, upon the complainant party which hit Noor Muhammad on his chest, who fell down. Appellant Misri had flashed the torch. Complainant party raised cries upon which the appellants went away from place of incident while firing. PW Barkat Ali was also attracted along with other villagers from the nearby villages They saw the injured Noor Muhammad lying on the ground, with a gunshot wound at his chest and he died on the spot. Thereafter, complainant left PWs at the place of incident and lodged the FIR.
3. The investigation was carried out by the police, during the course of which, the Investigation Officer got the post-mortem of the dead body of the deceased conducted, recorded statements of witnesses, arrested the appellants Allah Bux and Misri and recovered the pistol and torch respectively, made recoveries of two empty cartridges and blood stained mud from the place of incident, prepared relevant mashirnamas and inquest report and then on its completion submitted charge sheet whereby the appellants were forwarded to face their trial as per law.
4. A formal charge was framed against accused at Ex.2 to which they pleaded not guilty and claimed to be tried vide' pleas at Exs. 3 and 4 respectively.
5. The prosecution, in order to prove its case against the appellants, examined PW-1 Dr. Gul Hassan at Ex.7, who produced post mortem report at Ex.7/A; PW-2 Manthar at Ex.8, who produced Mashimamas of place of incident and examination of dead body, Danishtnama, memo. of arrest, memo of recovery of torch, memo. of recovery of DBBL gun and five live cartridges and deposition of Manthar recorded in Cr. Case No, 36 of 1998 at Exs. 8/A to 8/F respectively, PW-3 Complainant Hussain Bux who was examined at Ex.9, who produced FIR as Ex.9/A; PWs Abdul Hakeem at Ex.10, Rahim Khan at Ex.11 and Barkat Ali at 12, WHC Ali Muhammad who was well conversant of SHO Jan Muhammad -- (I.0.) of case at Ex. 13 who produced Chemical Examiner's Report at Ex.13/A; PW-8 Mushtaq Ahmed, Tapedar of beat at Ex.18 who produced copy of map at Ex.18/A; PW-10 SIP Azizullah, SHO P.S Mehrab Rahu at Ex.19. Learned DDPP has proceeded to close prosecution side vide statement at Ex. 20 and produced ballistic report at Ex. 20-A..
6. Thereafter, statement of appellants under section 342, Cr.P.C. were recorded Exs. 21 and 22 respectively. Appellant Allah Bux produced copy of judgment of case of 13(d) Arms Ordinance at Ex.21/A, both the appellants have denied the allegations leveled against them and claimed to be innocent. They did not examine themselves on oath as required under section 340(2), Cr.P.C. to disprove the charge and did not lead any evidence in their defence.
7. I have been addressed by Mr. Omparkash H. Karmani, learned counsel for the appellants.
According to him the appellants happen to be innocent and they stood falsely involved in the present case due to ulterior motive, as the complainant party used to back-bite them; that in the statements of the appellants recorded under section 342, Cr.P.C. no question was put to the appellants regarding alleged motive of the murder viz. back-biting of the appellants and the deceased; that the prosecution witnesses are related inter-se hence interested to implicate the appellants; that there are material contradictions in the statements of PWs; that no private person was associated as mashir of recovery etc,; that the crime weapons were not recovered from the appellants; that the incident took place at night time when there was darkness hence there are no eye-witnesses of the alleged incident; that crime empties were sent to expert with considerable delay and the crime weapons were never produced before the Trial Court; that Allah Bux had remained behind the bars for about six years; that prosecution has not been able to prove charge against the appellants beyond any shadow of doubt, therefore appellants may be acquitted from the charge.
8. As against this, Mr. Shahzado Saleem Nahiyoon, A.P.G for State, while supporting the impugned judgment argued that there is no delay in lodging of FIR; that evidence of the prosecution witnesses is consistent on material aspects of the matter; that though the witnesses are related to the complainant but since their evidence is consistent and no major/material contradictions have been pointed out in their evidence, such evidence is reliable and confidence inspiring; that the crime weapon as well as torch have been recovered from the possession of the appellants and that the medical evidence is also in conformity with the ocular testimony. He contended that prosecution was successful in establishing the guilt against the appellants, therefore, they stood rightly convicted and punished and the instant appeal is liable to be dismissed.
9. I have paid anxious consideration to the submissions advanced by the learned counsel for appellants as well as learned APG and have perused the evidence available on record carefully with their assistance. It is admitted position that present incident took place on 06.09.1998 at about 11:00 , PM in the night hours whereas FIR had been lodged on 07.09.1998 at about 0100 hours.
Complainant went to the police station' and lodged FIR while leaving the P. Ws over the dead body of deceased Noor Mohammad. The FIR was lodged within 2 hours and the distance between the place of incident and the police station would be about 4 Kilometers. Thus in the circumstances it appears on the record that FIR was lodged very promptly and without any undue delay. Hence, it could not be considered that the complainant party could have managed to fabricate a false story of incident to implicate the accused wrongly/ falsely by fabrication. The venue of offence, time place where the incident at hand took place have not been denied or disputed so also the injuries on the person of dead body of deceased Noor Mohammad have not been denied. As per material available, on examination of statement of complainant, who is an eye-witness, it transpires that in his examination-in-chief, he has testified to the effect that "when we were returned from tube well, after some distance one Allah Bux who issued threats (Hakal) he will not spare us, you people use to back biting against us. Then Misri who pointed flash torch upon us and shouted he will not spare you, then Allah Bux straightly fired upon us which hit my brother Noor Mohammad on his right side chest of my brother. The my brother after receiving fire arm injury fell down. Thereafter, we also fell down, thereafter Allah Bux another-fired in air, thereafter the tractor driver came there, tractor driver inquired from us who has fired upon Noor Mohammad. I disclosed that Allah Bux has fired upon my brother and killed him. Then we saw our brother Noor Mohammad on moon light and found the whole on chest with fire arm injury, thereafter my brother Abdul Hakeem on report of fire arm arrived at place of incident where dead body of Noor Mohammad was lying then my brother Abdul Hakeem enquired from me who fired upon my brother then I disclosed him, Allah Bux has fired and killed our brother and accused Misri was also accompanied with him." P.W Rahim Khan in his examination-in-Chief has deposed that "that accused Misri flashed torch and accused Allah Bux fired upon us. The fire hit upon Noor Mohammad deceased, hit on his right side chest and he fell down. Thereafter, accused went away and the villagers after report of fire rushed at place of incident. Deceased Noor Mohammad died on the spot. Then Hussain Bux leaving us and other villagers near dead body went to Police station and lodged FIR." Further, P.W Abdul Hakeem deposed that "I was going at place of incident. Accused Allah Bux son of Moula Bux and accused Misri son of Khemo meet with me, where saw Allah Bux armed with gun and Misri having torch in his hand, then I immediately rush at place of incident, where I met with Hussain Bux who disclosed me that accused Allah Bux had fired upon our brother and thereafter ran away.
Thereafter he left me at near the dead body and went to P.S for lodging FIR. Thereafter, police came at incident." However, P.W Barkat Ali had deposed that "I was heard noise of fire. After half an hour. Thereafter, off the tractor, went to down went to there, thereafter I reached at place of incident where I asked from Rahim about the incident, who disclosed that accused Allah Bux has committed murder of deceased Noor Mohammad. I saw deceased sustained injury on right side of chest on light of moon. The deceased did on spot. Thereafter I and complainant Hussain Bux went at P.S for lodging FIR on my tractor. Complainant Hussain Bux lodged FIR." In their cross- examination, all the above witnesses denied the suggestions put forth by the learned counsel for the appellants. They have specifically deposed that appellant Allah Bux made direct fire upon deceased Noor Mohammad and appellant Misri flashed torch while challenging the complainant party.
10. Therefore, in view of the above mentioned statements of eyewitnesses, it has been observed that these eye-witnesses have deposed actual facts consistently that the appellant Allah Bux caused the death of the deceased Noor Mohammad as alleged against him. Admittedly, complainant is brother of deceased Noor Mohammad and his presence at the place of incident cannot be said to be unnatural. His evidence appears to be just straightforward, inspiring confidence and fair. So far as the other eye-witness Rahim Khan is concerned, his testimony too appears to be straightforward, fair and confidence inspiring. To me, submission of learned defence counsel does not appear to be sound, forceful, having already considered their testimony fair and straightforward and also that I could not lay hand on any suggestion during cross-examination of these witnesses challenging their presence at the place of incident on this count. Merely, relationship of person with deceased, challenged or unchallenged does not, necessarily/essentially in all circumstances, termed such person when called for testimony, as an interested witness, there is no such rigid rule to presume so also conclusively. In this respect, I am fortified in my view with the principle laid down by the Hon'ble Apex Court wherein it has been held that mere relationship of PWs with deceased is no ground to discredit their evidence if it is proved that it is straightforward, fair and inspires confidence. In case if it is required, reference may be made to the cases of Mudassir alias Jamie v. The State (1996 SCMR 2003), Saeed Akhtar and others v. The State (2000 SCM R, 383), Noor Mohammad v. The State and others (2005 SCM R 1958), Mohammad Waris v. The State (2008 SCM R 784) and Sahib Khan v. The State (2008 SCM R 1049). So also reference may be made to the case of Zulfiqar Ahmed and another v. State (2011 SCM R 492), wherein it is held as:-- It is well settled by now that merely on the ground of inter-se relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness' was discussed elaborately in case titles Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive falsely involve the accused."
The Hon'ble Apex Court has observed in case reported as 2001 SCM R 177 that:-- "There is no force in the contention that conviction could not be awarded on the basis of solitary statement of Mst. Manzooran as it is quality of evidence and not quality which is to be considered.
The conviction can be based on the evidence of a solitary witness. In this regard we are fortified by the dictum laid down in PLD 1980 SC 225, 1971 SCMR 659, 1969 SCMR 76, 1971 SCMR 273 and 1995 SCMR 1979. As mentioned herein above the statement of Mst. Manzooran finds corroboration from medical evidence, motive surrounding circumstances and absconsion irrespective of her inter se relationship with deceased (PLD 1979 SC 144; 1975 Cr.LJ (DB) 218)"
11. It is worthwhile to mention here that to bring a witness within meaning of 'interested' it is always necessary for the defence to establish that there was a motive for such a witness to falsely involve the accused and if witness is blood-relative of deceased the motive must be so grave that it can in normal course could motivate a blood-relation to substitute a real culprit with an innocent. Be that as it may, Hussain Bux, eyewitnesses, according to his statement, was present at the time of occurrence at the place of incident for requesting the P.W Barkat Ali to plough the land of P.W Rahim Khan does not appear to be unnatural, regardless of the fact that they resided anywhere at a distant place from place of occurrence. Under the circumstances; I am not impressed with the contention of learned defence counsel that the complainant Hussain Bux, P. Ws Rahim Khan, Barkat and Abdul Hakeem have not consistently testified that the appellant Allah Bux caused the death of deceased Noor Muhammad as alleged against him. I have also scanned the medical evidence, which fully corroborates the ocular evidence of these two eye witnesses on point of injuries found on the body of the deceased Noor Muhammad. In the circumstances, moreso, when the two eye- witnesses have consistently made their testimony involving ambiance in commission of the offence, I prefer to ignore the evidence of other PWs Barkat Ali and Abdul Hakeem. Even then there is sufficient ocular evidence of complainant namely Hussain Bux corroborated by medical evidence which is alone sufficient to establish the case of prosecution against the appellant Allah Bux and I hold accordingly.
12.So far to circumstantial evidence i.e. recovery of gun, appellant Allah Bux who led the police party on the pointing out and taken out the same and produced before I.O. in presence of mashirs, though the learned counsel for appellant made oral submission that there is violation of section 103, Cr.P.C. It is well established that the Section 103, Cr.P.C. is not applicable in the circumstances when appellant led the police party, taken out and produced the crime weapon. I am fortified in view with the principle laid down in the ease reported as The State through A.G. Sindh v. Shankar (1997 SCM R 1000) and Mohammad Akram v. The State (2006 SCM R 1567), therefore, the oral submission of the learned counsel has no force.
13. Reverting to the submission of learned counsel that in the statement of appellants under section 342, Cr.P.C. no question was put to appellant regarding back biting, in first place, it may be pointed out J that no suggestion was put forth to the P.Ws in their cross-examination regarding back biting or motive; secondly, it may be stated that it is not always necessary that for the purpose of commission of capital offence there should always be a motive, hence, in my view the contention of learned counsel for appellants has no force. Even otherwise, it is also by now well settled principle of law that where the accused stand strongly connected with the commission of offence, proof or non-proof of motive becomes immaterial. Reference may be made in the case of Mohammad Waris v. The State and another (2007 SCM R 1535) and Muhammad Ilyas v. The State (PLD 2001 SC 333). It is not a case, where motive can be said to be shrouded mystery but even if for the sake of arguments, it had been so even then awarding of lesser penalty would not have been justified in absence of proving any mitigating circumstances.
14.Coming to the oral submission made by learned counsel that the appellant, Allah Bux had remained in custody for about more than 06 years. It appears that the learned counsel took said plea perhaps on humanitarian ground as to quantum of sentence awarded to the appellant, Allah Bux. Under the circumstances, however, I do not find any mitigating or extenuating circumstances brought on record to justify for reducing/converting the sentence of imprisonment for life as already undergone as the learned trial Court has already taken a lenient view while awarding lesser punishment i.e. imprisonment for life instead of death penalty. Thus the punishment for life awarded by learned trial Court to appellant. Allah Bux appears to be justified/reasonable.
15.In view of whatever has been discussed above, I am in my humble opinion that the present appeal merits no interference, to the extent of appellant Allah Bux, therefore, appeal at hand to his extent is accordingly dismissed. However, case of appellant Misri is distinguishable from the case of appellant Allah Bux, particularly in the circumstances, when the appellant Misri was holding torch and flashed the same by uttering words 'not spare him', but he was not armed with any weapon. Even no act is attributed to him except the flashing of torch-light. There is background of enmity between parties and appellants as Misri is relative of appellant Allah Bux. Therefore, his false implication cannot be ruled out. The circumstance that appellant Misri was possessing torch light, but he did not come duly armed with deadly weapon along with appellant Allah Bux at place of incident to cause harm to the complainant party, has created reasonable doubt regarding his involvement in case and more so there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. In this view, I am fortified with the principle laid in case-law reported as (1969 SCMR 1327) and (1973 SCMR 172). The principle that testimony of a witness found to be false in part should be discarded as a whole is no more in existence and as such the statement of complainant Hussain Bux cannot be brushed aside. I may point out here that similarly the rule that integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior courts without reservation and cannot be accepted as one of universal-applications.
In the last analysis, as observed in some of the imminent judicial decisions, the grain has to be sifted from the chaff in each case, in the light of its own peculiar circumstances. In this respect, reliance may respectfully be placed on case law reported as PLD 1970 SC 14. It may be kept in view that the statement of complainant namely Hussain Bux finds full corroboration from medical evidence and set of injury on the chest of deceased Noor Muhammad allegedly caused due to hit of fire made by convict/appellant Allah Bux finds corroboration by medical evidence which cannot be ignored without lawful justifiable excuses. Therefore, by way of abundant caution while extending benefit of doubt, appellant Misri is acquitted of the charge. His bail bond stands cancelled and surety is hereby discharged and the appeal to his extent is allowed.
With these observations, appeal at hand is accordingly disposed of in above terms.