ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No.34 of 2014 filed by the appellant Muhammad Akbar alias Akbar Ali son of Khamisa, against the judgment dated 15th January 2015 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge, Lasbella at Hub (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b)/34, P.P.C. and sentenced to suffer imprisonment for life and to pay Rs.1,00,000/- (One lac) as compensation as envisaged under section 544-A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of deceased Ghulam Muhammad and Rs.50,000/- (Fifty Thousand) to the heirs of deceased Muhammad Zahid, whereas in default thereof, he shall further suffer S.I. for six months, with the benefit of section 382-B, Cr.P.C., while accused Imam Bakhsh son of Khamisa and Khair Muhammad son of Soomar were acquitted of the charge.
2. Facts of the case are that on 29th April, 2012, the complainant Shahid son of Ghulam Muhammad, lodged FIR No.96/2012 at Police Station Hub City district Lasbella, under sections 302, 147, 148, 149, 109, P.P.C., stating therein that on the day of occurrence at about 8.30 a.m. he was present on CNG Askari Petrol Pump, where he received information that his father Ghulam Muhammad and brother Zahid were going to Hub Bazar from their house situated at TTC Colony on their motorcycle, after a small distance from their house, the accused Muhammad Ail, Akbar Ali, Imam Bakhsh sons of Khamisa, Abdul Rehman, Abdul Aziz sons of Abdul Rahim, Waqas son of Abdul Rehman, Umair son of Abdul Aziz came over there in a Parado vehicle bearing Registration No.BP-4369 and made firing upon them with fire arms and severely injured his father Ghulam Muhammad and brother Zahid. On such information, the complainant immediately reached at the place of occurrence and found his father and brother in injured condition, hence they were being taken to Hospital for treatment in private vehicle, but they succumbed to the injuries. The above named accused persons escaped in the said vehicle. Later on, it came into his knowledge that a day before, the accused persons came into the house of Khair Muhammad TTC College and after consultation with Khair Muhammad, they made firing and killed his father Ghulam Muhammad and brother Zahid. The motive behind the occurrence was the matrimonial dispute in between his sister and his brother in law Muhammad Ali.
3. After registration of FIR, PW-9 Sher Ahmed, IP/IO, who during investigation reached at hospital and carried out proceedings under section 174, Cr.P.C. by preparing the inquest report; obtained medical certificate from the concerned doctor; recorded the statements of witnesses under section 161, Cr.P.C.; visited the site and prepared site sketch; took into possession the six empties of 9mm pistol; took into possession blood stained earth; arrested accused Naseer Ahmed, Imam Bakhsh and appellant Muhammad Akbar alias Ali Akbar; took into possession the blood stained cloths of deceased and sent the same to FSL for analysis; on completion of investigation to the extent of arrested accused, submitted the challan in the trial Court.
4. At the trial, the nominated accused Muhammad Ali son of Khamisa, Abdul Rehman, Abdul Aziz sons of Abdul Raheem, Waqas son of Abdul Rehman and Umair son of Abdul Aziz were not arrested, thus proceedings under sections 87 and 88, Cr.P.C. were carried out and they were declared as proclaimed offenders.
5. Charge was framed and read over to appellant and acquitted accused, who claimed trial. The prosecution produced nine witnesses in support of charge, whereafter the appellant and acquitted accused were examined under section 342, Cr.P.C. Only the accused Imam Bakhsh recorded his statement on oath and produced two witnesses in his defence. However, the remaining acquitted accused along with appellant neither recorded their statements on oath nor produced any witness in their defence. On conclusion of trial and after hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above in para No.1, while acquitted accused Imam Bakhsh son of Khamisa and Khair Muhammad son of Soomar, whereafter instant appeal has been filed.
6. Learned counsel for appellant contended that the impugned judgment is result of mis-reading and mis-appreciation of material available on record; that the case of prosecution is lacking independent corroboration as only interested witnesses have been produced; that all the prosecution witnesses made contradictory statements to each other and did not support the case of prosecution; that the prosecution witnesses have failed to justify their presence and witnessing the crime at the time of occurrence; that the prosecution has failed to produce any iota of evidence connecting the appellant with the commission of alleged crime; that the prosecution has miserably failed to substantiate the charge against the appellant; that no recovery of crime weapon was effected from the possession of appellant; that the defence version was not given due weight as required by law, which resulted miscarriage of justice to the appellant.
7. Learned Deputy Prosecutor-General appearing for the State has strongly opposed the arguments so advanced by the learned counsel for appellant and while supporting the impugned judgment has contended that sufficient incriminating evidence available on record connecting the appellant with the commission of offence; that the appellant has failed to rebut his false implication by the prosecution, witnesses or any to the prosecution witnesses; that the impugned judgment of the Court below is based upon proper appraisal of material available on record.
8. Heard the learned counsel and perused the available record. In order to establish the charge, the prosecution has produced the evidence of nine witnesses, out of whom PW-2 Inayatullah and PW- 8 Jan Muhammad are claiming to be the eye-witnesses of the alleged occurrence, while PW-5 Shahid is the son of deceased Ghulam Muhammad as well as complainant of the case, whereas PW-1 is the mother of complainant, deceased Zahid and widow of deceased Ghulam Muhammad.
Likewise, PW-4 Dr. Bashir Ahmed, Medical Officer Jam Ghulam Qadir Hospital Hub has examined the deceased when they were brought before him in injured condition. Before dilating upon the ocular testimony, it would be appropriate to first discuss the medical evidence to establish the unnatural death of deceased.
9. According to PW-4 Dr. Bashir Ahmed, Medical Officer, Jam Ghulam Qadir Civil Hospital Hub, on the day of occurrence the deceased Ghulam Muhammad and Zahid were brought to hospital at about 9.00, hence he examined both the deceased and issued MLC Ex.P/4-A of deceased Zahid and MLC Ex.P/4-B of deceased Ghulam Muhammad. The bare perusal of MLC of deceased Zahid would reflect that he received a bullet injury i.e. wound on entry of L iliac Forsa, wound of exit on L buttock at. Post iliac spine and entry wound on R buttock at Post iliac spine. PW-4 opined the cause of death of deceased Zahid as Cardio respiratory arrest and the nature of injuries were fresh caused by fire arm. Likewise, the perusal of MLC Ex.P/4-B of deceased Ghulam Muhammad would reflect that he received 12 bullet injuries on different part of his body and also the cause of death is mentioned as Cardio respiratory arrest sec. The nature of injuries is fresh and caused by fire arm.
10. The bare perusal of MLCs of both the deceased would establish the fact that their death was unnatural as both the deceased person received multiple fire arm injuries on their person. Even otherwise, the defence has also not disputed the unnatural death of deceased, but pleaded false implication.
11. Now diverting to the ocular evidence produced by the prosecution in shape of circumstantial and direct evidence. The complainant of the case appeared as PW-5, who mostly reiterated the contents of his fard-e-bayan and narrated the story with regard to dual murders of his father and brother by the accused persons. The statement of this witness would establish the motive behind the occurrence in respect of worse matrimonial relations between his sister Sajida and his brother in law Muhammad Ali (appellant). The evidence of this witness is circumstantial in nature, which has not only brought the criminal machinery into motion, but also narrated the motive behind the occurrence. The statement of PW-1 Gul Nisa is also in line to the statement of PW-5. PW-1 is the widow of deceased Ghulam Muhammad and the mother of deceased Zahid. She deposed in her statement that on the day of occurrence accused Muhammad Ali and Akbar came to her house and accused Muhammad Ali was having a pistol in his hand, who came there and murdered her son and husband. The statement of this witness also confirms the presence of PW-2 Abdul Wahid nearby the place of occurrence whilst cutting wood. PW-1 also mentioned the presence of third person, but she did not know him. The PW-1 also narrated the story of worse matrimonial relations between her daughter Sajida with her husband appellant Muhammad Ali. The statements of PW-1 and PW-5 being circumstantial evidence have fully corroborated the direct and medical evidence as well as the motive behind the occurrence.
12. Adverting to the direct evidence produced by the prosecution in the shape of PW-2 Abdul Wahid and PW-8 Jan Muhammad PW-2 in his examination in chief stated that on the day of occurrence he was sleeping in house, when at about 8.00 a.m. his father and brother went on a motorcycle, he also took out behind them and saw that Muhammad Ali and Akbar boarded on a motorcycle went behind them and they caused injuries through pistol to his father, due to which he passed away at the spot, while his brother was taken to hospital. PW-2 also mentioned the presence of Muhammad Ali, Akbar, Imam Bakhsh and 3/4 other persons. Thereafter, he went to his house and informed his mother about the incident. The testimony of this witness was tested through lengthy cross examination, but nothing advantageous has come on record favouring the appellant rather it has also been confirmed that actually the appellant was the culprit, who made firing upon the deceased and committed dual murder. PW-8 Jan Muhammad is the second eye-witness of the occurrence. According to him on the clay of occurrence he took the motorcycle from his cousin Akbar and proceeded towards the house of his sister situated at TTC Colony. However, when he reached near Miyani Poly Packages Factory, where he saw his brother in law and nephew coming in front of him. In the meanwhile, a motorcycle came with a speed back to them being ridden by accused Akbar, while the appellant Muhammad Ali was seated behind him. Muhammad Ali took out pistol and made firing upon his brother in law and nephew. In the meanwhile, one black jeep stopped near to them, due to fear he stopped and returned. Thereafter he came to Bazar and informed his step nephew Shahid through phone and reached to the house of his sister along with his cousin Akbar, wherefrom it came to know that Ghulam Muhammad and Zahid were taken to hospital and he reached to hospital and found both expired. This witness also identified the appellant Muhammad Ali in the Court. Besides, the PW-2 being an innocent child narrated the real facts without any tutor. The deceased were the father and brother of PW-2 and he alone had sympathy and natural love with his father and brother. Admittedly, PW-2 is a minor, but at the time of cross- examination in the trial Court replied the questions correctly, which establishes the soundness of his mind and his statement cannot be thrown aside merely on the ground of his being minor age of eleven years rather alone his statement is enough to establish the charge of murder against the appellant. Even otherwise, there is nothing on record showing that this witness was tutored by her elders. We are conscious of the fact that the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some cogent evidence on the record. However, in the case in hand the statement of child witness has fully been corroborated by the circumstantial witnesses i.e. PW-1, PW-5 and the direct evidence of PW-8.
Reliance in this regard is placed in the case of Muhammad Anwar v. State, 1985 PCr.LJ 2500, wherein that, "The said child who was a minor was put questions by the learned trial Judge to test her intelligence and credibility, the answers to which showed she understood the questions and could answer the same intelligently. Nothing appears in the evidence to show why the same of Mst. Asima Parveen, PW-3 cannot be accepted. In these circumstances, the evidence of this kidnapped child alone is sufficient to prove the charge of kidnapping against the appellant."
Similar view has also been taken in the case of Muzammil Shah v. State, 1991 M LD 1944, wherein it has been held as under:
10. We have gone through the evidence of Mst. Irshad (P. W.5) with care. Before recording her statement, the learned trial Judge had recorded a note after putting her certain questions that he was satisfied that the witness was intelligent and was capable of making rational answers to questions put to her. Besides, she has been subjected to fairly lengthy cross-examination which she had withstood to an astonishing degree. A perusal of her statement shows that she made the statement in a frank and straightforward manner. Curiously there was no suggestion to her in her cross-examination that she did not know the appellant. Then there are no circumstances to indicate that she might have been tutored. She had seen the appellant in the course of committing sodomy over the victim with his trousers loosened. She was intelligent enough to understand as to what had been done to her brother and neither she nor her father had any motive to falsely implicate him. We see no reason whatsoever why the statement of such a child witness should not be believed though a suggestion was made to Naeem Gul (PW.4) that there was enmity of her relatives with the appellant. Nonetheless, the appellant when examined under section 342, Cr. P. C. did not take up this plea. We have not been able to discover any valid reason to reject the testimony of Mst. Irshad (PW.5).
Likewise, in the case of Usmanullah v. Sharafat Khan, 2016 PCr.LJ 1558, the relevant portion is reproduced hereinbelow: "10. The learned trial Court in its judgment impugned herein has also referred to the statement of minor witness namely Hafeez-ur-Rehman (PW-11) who is the sole eye-witness to the occurrence, however, his statement was not given credence by the trial for the reason that the same is inconsistent with the statements of other prosecution witnesses. No doubt, there is no eye-witness to the occurrence except the child witness Hafeez-ur-Rehman and the prosecution has produced him as the sole eyewitness to the occurrence whose presence on the spot has been established as well. It is noticed that the child alone had sympathy and natural love with his father i.e. the deceased whereas his mother Mst. Abida had also joined hands with the accused, therefore, in such like situation the statement of the natural and sole eye-witness should have been considered by the trial Court. It is also a fact that PW-I I was nine years of age at the time of recording his statement and being a child witness his statement should not be compared with the statements of other major witnesses as much accuracy and complete consistency of his statement with that of the remaining witnesses cannot be expected keeping in view his minor age and other circumstances of the case. However, the statement of PW-11 (the child witness) is consistent with the confessional statements of the respondents/ accused regarding the facts that his father had been subjected to asphyxiation at the night of occurrence and that he was removed from the scene by the juvenile accused Niaz-ur-Rehman."
13. We have minutely analyzed the statements of PW-2 and PW-8 being the eye-witnesses of the occurrence and have no hesitation to hold that their testimonies remained unshaken with regard to departure of both the deceased from their house situated at TTC Colony Hub and chased by the accused persons and made firing upon them by means of fire arm. The statements of both the witnesses were tested through lengthy cross-examination, but they remained firm on all counts and the defence has failed to give any jolt or shaken their testimonies. Both the witnesses correctly narrated the date, time, the place of occurrence and the manner in which the accused party arrived at the site and caused dual murder of both the deceased by means of fire arm and the ocular testimony has fully been corroborated by the medical evidence, wherein it has been opined that the deceased had received multiple injuries on their person by means of fire arm. 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 about the involvement and guilt of the appellant.
14. The plea of the learned counsel for the appellant that only interested witnesses were produced by the prosecution and the case of prosecution is lacking independent corroboration, suffice to state here that mere relation of witnesses with the deceased is no ground to discard their testimonies, if their evidence is found entirely independent and truthful, therefore, their testimony without looking for 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. Reliance in this regard is placed on the case of Muhammad Akram v. The State reported in 2015 YLR 116. It is also necessary to mention here that PW-2 is the real son of deceased Ghulam Muhammad, while he is the brother of deceased Zahid. Likewise, PW- 8 is the brother in law of deceased Ghulam Muhammad, while deceased Zahid was his nephew.
The parties were known to each other previously and the question of mistaken identity of the real culprits does not arise, as the occurrence took place in the broad day light. It is hard to believe that he would substitute the accused/appellant for the real culprits, who had committed murder of his deceased blood relations. Needless to observe that substitution is a rare phenomena. Reliance in this regard may be placed on the case of and the case of Haji All Shan v. The State reported in 2001 PCr.LJ 1320 and Allah Ditta's v. The State, reported in PLD 2002 SC 52. In the case of Allah Ditta's it was held as under: "... It is also to be noted that admittedly prosecution witnesses Muhammad Sadie and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would allow real culprit to go scot-free and falsely involve another person for the commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice." (BOLD ADDED)
15. The appraisal of direct and circumstantial coupled with medical evidence after minute consideration of all the circumstances, in the light of dictum laid down by the August Supreme Court as well as the recoveries of crime empties, we are of the considered view that the appellant is responsible for the murder of the deceased and has rightly been convicted by the trial Court. The counsel for appellant has failed to point out any single circumstances giving dent or creating reasonable doubt in the case of the prosecution. The defence has absolutely failed to point out any material illegality, irregularity or infirmity in the case of prosecution, warranting interference by this Court.
For the above reasons, the Appeal being devoid of merits is dismissed accordingly.