ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No. 223 of 2015 filed by the appellant Hassan Gul son of Sultan, against the judgment dated 29th June 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge Musakhail Loralai (hereinafter referred as "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death as Tazir and it was ordered that he shall be hanged by neck until he is dead; he was also convicted under section 324, P.P.C. and sentenced to suffer seven (07) years' R.I. with fine of Rs.50,000/- (Rupees Fifty thousand only), while in default thereof he has to further suffer six (06) months' S.I.; under section 337-ADF, P.P.C. and sentenced to suffer three (03) years' R.I. with fine of Rs.50,000/- or in default thereof to further suffer six (06) months' S.I. The benefit of section 382-B, Cr.P.C. has also been extended in favour appellant. The murder reference No.16 of 2015 has been made, by the Sessions Judge Musakhail at Loralai.
2. Facts of the case are that on 15th November 2009, the complainant Sher Zaman son of Dasmal, lodged FIR No.02/2009 under sections 302, 324, 337-ADF/34, P.P.C. at Levies Station Head Quarter Tehsil Musakhail, stating therein that on the day of occurrence at about 4.00 p.m. the complainant along with Azad Khan Asoot proceeded for Drugg on the vehicle of deceased Saleem and when they reached near Sarri Bridge, two persons came on the road with Kalashnikovs and two other accused were sitting on the other side of the road. The accused Nawaz Khan and Hassan Gul made firing upon them, due to which Saleem received injuries and died at the spot, while Azad Khan Assot received bullet injuries. The persons sitting on the other side of the road also made firing.
3. Pursuant to the above FIR, the investigation of the case was carried out by PW-5 Muhammad Akram, Tehsildar Musakhail, who during investigation recorded the statements of witnesses under section 161, Cr.P.C.; taken the injured and the deceased to hospital and took into possession their blood stained clothes; visited the site on the following day and took into possession one empty and one shell; prepared site sketch; obtained the bail warrants of arrest of the accused and thereafter submitted incomplete Challan in the trial Court. PW-6 Ghulam Haider, Tehsildar Musakhail, is the second I.O. of the case, who during investigation arrested the appellant and carried out investigation from him and on completion of investigation submitted the challan in the trial Court.
4. On receipt of challan, the trial Court issued warrants of arrest of absconding accused namely Nawaz Khan son of Akhtar, which were not executed, thus proceedings under sections 87 and 88, Cr.P.C. were carried out and he was declared as proclaimed offender.
5. During the trial, the prosecution produced five (05) witnesses, whereafter; the appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court awarded him death sentence as mentioned in para-1 above, against his conviction and sentence, the appellant has preferred the instant Criminal Appeal, whereas the trial Court has forwarded Murder Reference No.16 of 2015, for confirmation of death sentence or otherwise.
6. Learned counsel for the appellant contended that the prosecution has miserably failed to establish the charge against the appellant through solid or concrete evidence and the evidence of only interested witnesses have been recorded and no independent witness was produced; that being related and interested witnesses, their testimony are not admissible, reliable and liable to be discarded; that all the witnesses made contradictory statements to each other and also made dishonest improvements in their earlier depositions; that the case of prosecution is full of doubts and discrepancies, but the benefit of such doubts were not extended to the appellant and the appellant was treated very harshly; that no recovery of crime weapon has been effected from the possession of appellant; that the PW-1/complainant is planted witness as he was sitting in the vehicle, but not received a single bullet injury; that in existence of mitigating circumstances in the case of prosecution, award of capital punishment is unwarranted.
7. Learned Additional Prosecutor General assisted by learned counsel for the complainant while supporting the impugned judgment had vehemently opposed the arguments so advanced by the learned counsel for the appellant and contended that the appellant along with other absconding accused made indiscriminate firing upon the vehicle, in which the deceased along with injured witness and the complainant were, seated, which resulted into murder of deceased Saleem and causing injuries to Azad Khan Assot; that the appellant has absolutely failed to point out any ulterior motives and on the part of PWs with regard to his false implication, hence the appeal deserves dismissal as the trial Court has rightly awarded penalty of death to the appellant through impugned judgment, which is not open for any interference by this Court.
8. Heard the learned counsel and perused the available record. Perusal of record reveals that the unnatural death of deceased Muhammad Saleem is not disputed. After the occurrence, the dead body was shifted to hospital, where PW-4 Dr. Muhammad Rahim, Medical Officer, Civil Hospital Musakhail has examined the dead body of deceased Muhammad Saleem and opined that the deceased died by unnatural death. On examination, PW-4 found multiple bullet injuries on the person of deceased caused with fire-arm and the cause of death was mentioned as Haemorrhagic shock. PW-4 after complete and thorough examination issued MLC Ex.P/4-A, which confirms the unnatural death of deceased. PW-4 has also examined the injured Azad Khan son of Naseeb Khan and found three number of injuries on his person. PW-4 opined that the said injuries were fresh and grievous in nature as well as caused with firm arms. PW-4 issued MLC Ex.P/4-C, which, confirms the bullet injuries caused with fire arm. The defence has also not disputed the unnatural death of deceased, but pleaded his false implication.
9. Adverting to ocular testimony produced by the prosecution, which is in the shape of direct, circumstantial and medical evidence. The medical evidence has already been discussed above, hence it would be appropriate to discuss the direct evidence produced by the prosecution through-statements of PW-1 and PW-2, who are the star witnesses of the prosecution. PW-1 Sher Zaman, is the complainant of the case and was accompanying the deceased and the injured at the time of alleged occurrence. PW-1 has recorded his statement accurately, correctly and in line with his earlier deposition contained in the fard-e-bayan Ex.P/1-A. PW1 has correctly mentioned the time, date, the place of occurrence and the manner in which the alleged occurrence has taken place. He has also correctly identified the appellant in the Court as assailant, who along with co- accused made firing upon the deceased and the injured. The defence despite lengthy cross- examination has failed to give dent, jolt or shaken the testimony of the complainant.
10.Adverting to the statement of PW-2 Azad Khan Assot, suffice to observe here that PW-2 has recorded his statement in line to the statement of complainant of the case and he correctly identified the appellant in the trial Court. PW-2 is the most reliable and trust worthy witness of the prosecution and his presence cannot be rebutted in any way as he had also received three bullet injuries on his person, thus his presence at the relevant time was natural and in no manner the defence can claim that this witness is a planted witness or that he was arranged subsequently. The occurrence had taken place at about 4.00 p.m. during day light, the appellant was the resident of the same vicinity and having a landed dispute as well as litigations were also pending in between the parties, thus it would not be appealable to a prudent mind that the appellant has mistakenly been identified by the witnesses. Besides, this witness has also been cross-examined at sufficient length, but he remained firm in his deposition and throughout in examination in chief or during cross-examination he remained in same track and nothing advantageous or beneficial has come on record favouring the defence.
11.So far as, the objections of learned counsel for the appellant that the statement of PW-1 does not ring true as he was not injured despite his sitting in the vehicle, which faced indiscriminate firing with automatic weapons by four accused persons and the same resulted into the death of deceased Muhammad Saleem and injuring the PW-2 is concerned, it is suffice to observe here that the objection so taken is without any substance for the reason that if the statement of PW-1 is discarded at all from the consideration, given then the statement of victim i.e. PW-2, who received several bullet injuries on his person is sufficient to establish the charge against the appellant. it is not incumbent that all the persons sitting in the vehicle must have been received bullet injuries.
Even otherwise, the statement of PW-1 has been corroborated by the injured witness PW-2, which is enough to establish the charge against the appellant.
12.The next objection taken by the defence is that only the interested witnesses have been produced and thus the case of prosecution is lacking independent corroboration, suffice to state here that all the witnesses are not interested witnesses rather PW-2 is most natural witness of the occurrence, who has also received multiple bullet injuries on his person, 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 merely on such ground because testimony was found entirely independent and truthful, therefore, their deposition without looking for any other corroborative evidence despite of the fact both the witnesses have corroborated each other on all material counts, their statements are sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration. It is necessary to mention here that PW-2 faced life- threatening attack and luckily, survived from the death, thus under the circumstances it would not be justified to declare him as interested witness or to believe that he may involve innocent persons leaving the real culprits, who made extreme attempts to also take his life. PW-4 being Medical Officer examined the injured and found multiple bullet injuries on his person. The nature of injuries received by PW-2 cannot be said to be self-inflicted and even the defence has not disputed the same to be self-inflicted or the same were old injuries, as such, legally the statement of an injured witness cannot be challenged. Reliance in this regard is placed on the case of Farooq Khalil v. State 2008 SCM R 917, wherein it has been held that,"
7. We have heard learned counsel for the parties and have perused the available record with their assistance. There is no denying the fact that it was a broad-daylight occurrence Farooq Khan, appellant injured the deceased with Chhuri hitting him on the left side of his chest. The presence of the injured P. Ws. at the place of occurrence is intrinsic and could not be doubted because it was unchallenged. Statement of P. W. 8 is consistent, straightforward and trustworthy with no cogent reason in evidence to disbelieve the same.
8. The defence has also not doubted or challenged the injuries sustained by the injured P. W. in cross-examination. The injuries sustained by P. W.8 have been duly supported by medical evidence furnished by P. W. 10 Dr. Humayun Khan who ruled out that the injuries on person of Namoos Khan P.
W.8 were self-inflicting injuries.
9. As to the argument of learned counsel for the appellant that the solitary statement of injured P.
W.8 was the basis of conviction, suffice it to observe that the injured prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of this witness has been supported by medical evidence furnished by Dr. Muhammad Maqsood P.W. 6 who 'conducted post-mortem examination on the dead body of the deceased Zahir Khan. The evidence of injured witness is worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context reference can be made to Mali v. The State 1969 SCM R 76; Muhammad Ashraf v. The State 1971 SCM R 530, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCM R 659 and Muhammad Mansha v. The State 2001 SCM R 199".
Similar view has been taken by the Hon'ble Supreme Court of India in the case of Nallamsetty Yanadaiah v. State of Andra Pradesh 1994 SCM R 588, wherein it has been held as under: "Learned counsel also submits that the eye-witnesses were all interested witnesses and they tried to implicate many innocent persons and that it would be highly unsafe to accept their evidence.
We see no substance in his submission. Here is a case where a large number of persons armed with deadly weapons, like guns and other cutting weapons, participated in the occurrence during which four persons were killed and many of the witnesses who were present were also injured. It may be that they are all interested witnesses. But on that ground alone their evidence cannot be rejected. Their evidence is to be subjected to close scrutiny. As a matter of fact, the learned Sessions Judge, as well as the High Court have considered evidence of each of the witnesses with great care and caution. Both the Courts below have acquitted such of those accused against whom the Court felt the prosecution case is not good beyond all reasonable doubt."
13. In view of above referred judgments and according to settled norms of justice, we at our utmost care, caution and by applying judicious minds analyzed the statements of both the eye witnesses and found the same reliable, because both the witnesses being seated in the vehicle and moreover one of the witnesses was also injured, their presence at the time of incident is natural.
Besides, both the PWs will never raise their fingers on innocent person leaving the actual and real culprits, who had made attempt to take their lives. Thus, in our view both the witnesses are independent and credible witnesses. Although, the learned counsel for the appellant 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 K about the involvement and guilt of the appellant.
14.Insofar, the non-recovery of crime weapon is concerned, the same is immaterial in the case in hand. As the incident had taken place on 15th November 2009 and thereafter the appellant absconded for a long period and he was arrested in another case, when on getting information, his hand was taken from district Jail Loralai and he was investigated in Jail, thus the appellant during the intervening period had got sufficient time to conceal the crime weapon. Besides, the recovery of crime weapon can only be a supporting piece of evidence, whereas the prosecution has proved its case independently through direct ocular evidence. Mere non-recovery of crime weapon is no ground to discredit or disbelieve the entire prosecution case. Reliance in this regard is placed to the case of Sikandet Teghani alias Muhammad Teghani v. The State 2016 YLR 1098, whereby it has been held that where the charge is proved by other direct, natural and confidence inspiring evidence then non-recovery of the crime weapon was not held to be fatal even. The Hon'ble Supreme Court in case Muhammad Nadeem alias Deemi v. State 2011 SCM R 872, held as under: "...the recovery of crime weapon in a criminal case is not at all material. It can only be a piece of supporting evidence. If other evidence goes to prove the case independently, the recovery is not essential at all."
15. The reappraisal of entire prosecution evidence establishes that the prosecution has succeeded in proving the charge against the appellant through direct evidence coupled by medical and circumstantial evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. Throughout the proceedings the appellant has not taken any specific plea with regard to his false implication nor he has brought any ill-will or ulterior motives for his false implication by the witnesses and specially against the PW-1 and PW-2, who being natural witnesses directly witnessed the crime. The learned trial Court has discussed and dilated upon each and every aspect of the case and had rightly found the appellant guilty of offence, but while recording judgment has treated harshly to the appellant by awarding him capital punishment, ignoring the fact that admittedly a landed dispute exists between the parties. Thus in view of the mitigating circumstances, the sentence of appellant is reduced/converted from death sentence to imprisonment for life with compensation of Rs.300,000/- to be paid to the legal heirs of deceased Muhammad Saleem as envisaged under section 544-A, Cr.P.C. and in default the appellant shall further suffer three years' S.I. While; the remaining sentences shall remain intact. The benefit of section 382-B, Cr.P.C. is also extended in favour of appellant.
For foregoing reasons, after above modification of judgment of trial Court, the appeal stands dismissed. Consequently, the Murder Reference is answered in negative.