ABDULLAH BALOCH, J.---This common judgment disposes of Crim inal Appeal No, 328 of 2016 and Murder Reference No, 07 of 2016.
The Criminal Appeal No, 328 has been filed by the appellant Tareen alias Bado son of Shareen alias Dunia, against the judgment dated 15th October 2016 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge Killa Saifullah (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 337-F(iii), P.P.C. and sentenced to suffer R.I. for two years and to pay Daman of Rs,20,000/-, to be paid to the victim Abdullah Khan. He was also convicted under section 302(b), P.P.C. and sentenced to death, with the benefit of section 382-B, Cr .P.C.
While the Murder Reference No,07/2016 has been made by the learned trial Court for confirmation of death sentence awarded to the appellant or otherwise as envisaged under section 374, P .P.C.
2. Facts of the case are that on 22nd June 2015, the complainant Abdul Karim, IP/SHO, lodged FIR No,24 of 2015 at Police Station City Killah Saifullah, under sections 30.2, 324, P.P.C.. stating therein that he along with other police officials were on patrolling at about 4.50 p.m. when reached near Junction Chowk, heard firing shots, thus he immediately proceeded; towards the place of firing and found a person making firing shots, while one person was died on the spot due to firing and the another became seriously injured. The person, who was firing shots was overpowered with the help of police personnel, whereas the deceased was identified as Fazal Khan, while the injured was identified as Abdullah Khan. Both the injured and deceased were sent to Hospital at Killa Saifullah, while the appellant was apprehended on the spot, who was identified as Tareen alias Bado and a Megaroof pistol was recovered from his right hand. On personal search bandoleer having eleven cartridges along with extra magazine containing six live cartridges, were recovered.
3. Pursuant to above FIR, investigation was entrusted to PW-9 Muhammad Yousaf, SI/Investigating Officer (ID), who during investigation shifted the injured and deceased to District Headqu arter Hospital Killah Saifullah; prepared site sketch; recorded the statem ents of witnesses under section 161, Cr.P.C.: took into possession the recovered arm and ammunition; took into possession two empties, blood stained earth and gravel from the place of occurrence as well as the blood stained clothes of deceased and injured; carried out proceeding under section 174, Cr.P.C. and prepared inquest report of deceased; obtained MLC of injured and death certificate of deceased; sent all the blood stained articles and the empties along with recovered pistol to FSL for analysis and received the FSL reports in af firmative; on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced nine (09) witnesses, whereafter; the appellant was examined under section 342, Cr.P.C. The appellant also recorded his statement on oath under section 340(2), Cr.P.C. and produced two witnesses in his defence. On conclusion of trial and after hearing arguments, the trial Court besides awarding other sentences has also awarded death sentence to the appellant as mentioned above in para-1. The appellant has preferred the instant criminal appeal, whereas the trial Court forwarded Murde r Reference for confirmation or otherwise of the death sentence awarded to the appellant.
5. Learned counsel for the appellant contended that the prosecution has failed to substantiate the charge against the appellant beyond the shadow of reasonable doubt; that the statements of interested and related witnesses as well as the statements of police officials are lacking independent corroboration, who otherwise made contradictory statements with each other; that the witnesses could not justify their presence at the site and the appellant has been dragged in this false case due to previous enmity; that the recovery of crime weapon has been foisted upon the appellant just to strengthen the case of prosecution; that the defence so taken and established has not been taken into consideration by the learned trial Court; that the appellant is an old age person of 72 years and he cannot conceive to commit the instant heinous crime; that the case of prosecution is full of doubts. but while awarding Capital punishment of death, the trial Court has failed to extend the benefit of such doubts in favour of appellant: that the facts and circumstances would suggest that it is, not a case, where one can be penalized for capital punishment.
6. Learned Additional Prosecutor General assisted by learned counsel for complainant while supporting the impugned judgment contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond the shadow of reasonable doub t; that the FIR has been lodged promptly , wherein the appellant was spec ifically nominated with the role of firing, besides he was arrested at the spot and the recovery of crime weapon was effected from his possession by the police; that the defence has failed to point out any contradiction, infirmity or dishonest improvement in the prosecution evidence; that the deceased and injured were sitting in Bazar and were busy in discussing their family affairs, while the appellant well prepared and duly armed with pistol arrived at the site and made firing upon the victims, which fact itself is enough to prove the element of pre-mediation and mens rea of the appellant for committing the crime, thus, rightly he was sentenced for Capital punishment through impugned judgment, which otherwise is not open for interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of record reveals that the unnatural death of deceased Fazal Khan and injuring PW-2 Abdullah Khan are not disputed. Soon after the occurrence, the deceased and injured were shifted to District Headquarter Hospital Killah Saifullah, where PW-7 Dr. Bahawa Din, Medical Officer examined the deceased and injured and issued MLC of injured as Ex.P/7-A and Death Certificate of deceased Fazal Khan as Ex.P/7-B. The Death Certificate of deceased reflects that he had received multiple bullet injuries on his abdomen, on right hand and on his forearm. PW-7 has opined the cause of death of deceased as intrabdominal bleeding and the weapon used in the crime was fire arm. Besides, the MLC of injured reflects that he had received firearm injury on right side of abdomen caused with fire arm. Thereafter , the injured was referred to Civil Hospital Quetta for further treatment, where once again he was examined by PW-8 Dr. Noor Baloch, Police Surgeon, who confirmed the bullet injury received by the injured. Besides, the Investigating Officer collected the blood-stained earth, blood stained gravel as well as the blood-stained clothes of injured and deceased and sent the same to FSL for analysis. After examination the FSL issued analysis report as Ex.P/9-F and G, perusal of which establishes the fact that the same were stained with human blood. Furthermore, the unnatural death of deceased has also been established from the Inquest Report Ex.P/9-B, which confirms the bullet injuries received by the deceased on his person.
8. Admittedly , the prosecution has succe eded through medical evidence that the deceased Fazal Khan was died due to unnatural death as well as receiv ing of bullet injury on his abdomen by the injured Abdullah Khan. The defence has also not disputed the unnatural death and receiving of bullet injury by the injured, but plead his false implication.
9. Adverting to ocular testimony produced by the prosecution. The prosecution in order to substantiate the charge, has produced the evidence of nine witnesses. The complainant of the case namely Abdul Karim is serving as IP/SHO of the concerned police station. This witness has mostly reiterated the contents of his fard-e-bayan Ex.P/1- A. According to this witness on the day of occurrence he along with other , police officials patrolling the area, when heard firing shot towards Wasay Market, hence he reached there, where they found a person making firing, due to which the deceased Fazal Khan succumbed to the injuries, while PW-2 Abdullah Khan was lying in serious injured condition, hence the apprehended the appellant from the place of occurrence and from his possession the recovery of Megaroof pistol was effected. Likewise, PW-4 is also the member of police patrolling party as well as the eye- witness of the occurrence. This witness has fully corroborated the statement of PW-1 and apprehending of the appellant red handedly from the place of occurrence along with the crime weapon. Both the witnesses correctly identified the appellant as the culprit, who was apprehended from the place of occurrence along with the crime weapon. Both the witnesses being police official/of ficial correctly stated the date, time, the place of occurrence and the manner in which they heard the firing shots, their arrival at the place of occurrence, apprehending the appellant red handedly and effecting the recovery of crime weapon along with two empties from the place of occurrence.
Their statements cleared the acid test of lengthy cross-examination and the defence has failed to give slightest dent or damage to their testimony . Furthermore, both the witnesses had not known the appellant previously , thus they had no ulterior motives to falsely implicate the appellant in the crime. The learned counsel for the appellant made an unsuccessful attempt to discredit the evidence of eye-witnesses being police officials, but legally the police officials are as good witnesses as the private witnesses and their testimony cannot be discarded solely on the ground G that they are police officials until and unless the defence succeeds in proving any ill-will or mala fide on the part of police of ficials.
10. The most important and star witness of the prosecution is PW-2 Abdullah Khan and PW-3 Abdul Rehman. PW- 2 sustained bullet injury on his abdomen in the instant occurrence, who in his examination in chief before the trial Court has narrated the story with regard to their arrival in the accompany of his deceased brother Fazal Khan from Killah Saifullah from Khanozai and were sitting with their uncle PW-3 Abdul Rehman and discussing domestic matter , when all of sudden the appellant appeared at the site and started firing upon him as well as upon his brother , due to which he sustained bullet injury on his abdomen, while his brother succumbed to the injuries. PW-2 has also confirmed the arrival of police at the relevant time and apprehending the appellant red handed along with the crime weapon. Since, the PW-2 himself sustained bullet injury on his abdomen, thus his presence at the place of occurrence is natural and cannot be disputed in any manner . The statement of both the PW-2 and PW-3 are similar with each other on all counts. Both the PWs have correctly identified the appellant in the trial Court and have correctly stated the date, time, the place of occurrence and the manner in which the occurrence had taken place. Since, the PW-2 himself was injured in the incident, thus according to settle d I norms of justice, the solitary statement of injured witness being confidence inspiring is suf ficient to convict the culprit.
11. So far as the objection taken by the defence that only interested witnesses were produced and the case of prosecution is lacking independent corroboration, suffice to observe here and already discussed above, besides the statements of PW-2 being the brother of deceased and PW-3 being the uncle of deceased, the prosecution has also produced the evidence of two police-of ficer/of ficial, who had directedly witnessed the crime and caught red handed the appellant from the place of occurrence along with the crime weapon. However , in heinous crimes 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, while his brother was murdered in his presence, 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. The nature of injuries received by PW-2 cannot 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 Khan v. State 2008 SCMR 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 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v . The State 2001 SCMR 199 ".
12. The case of prosecution has further been strengthened from the recovery of crime weapon. Admittedly , the appellant was caught red handed soon after the occurrence and the police snatched the crime weapon i.e. pistol from him. Besides, two empties were also recovered from the place of occurrence. The Investigating Officer sent the recovered empties along with the recovered crime weapon to FSL for analysis and after analysis the FSL has issued its report Ex.P/9-J, perusal of which reflects that the empties recovered from the place of occurrence were matched with the crime weapon snatched from the appellant by the police.
13. Adverting to the defence plea of the appellant, suffice to observe here that the appellant has recorded his statement on oath as well as produced two witnesses in his defence, whereby he has only taken the plea that he was arrested from nearby the Cattle Market and not from the place of occurrence as shown by the appellant, but has failed to produce any solid or concret e evidence either establishing the mala fide intention of official witnesses, who caught him red handed or the ulterior motives of PW-2 and PW-3 for his false implication. Admittedly , not a single evidence has been brought in such behalf by the appellant.
14. The reappraisal of entire prosecutio n evidence establishes the fact that the prosecution has succeeded in proving the charge against the appel lant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. The recovery of empties of pistol and T.T. pistol from the place of occurrence coupled with the matching of the same with each other has given sound foundations to the case of prosecution. The learned trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted the appellant. The citations so referred by the learned defence counsel are distinguishable in facts and circumstances of the instant case.
15. So far as the quantum of sentence i.e. Capital punishment of death is concern ed, we do not find in agreement ourselves with regard to the same. Suffice to observe here that the prosecution has failed to establish the motive behind the occurrence and the facts and circumstances of the case would show that though the prosecution has successfully established the charge, but the complainant party has tried to camouflage the actual facts from the court. However , it has come on record that prior to incident some altercation had taken place in between the parties. Moreover , the appellant is in old age is of 72 years, thus under the peculiar circumstances of the case it would be unjustified to award capital punishment of death to the appellant.
16. For the reasons discussed hereinabove, while upholding the conviction of convict-appellant Tareen alias Bado son of Shareen alias Dunia under section 337-F(iii), P.P.C. and under section 302(b), P.P.C., his sentence under section 302(b), P.P.C. is converted into R.I. for life. The appellant has to pay Rs,300,000/- (Rupees three 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 six (06) months' S.1., while the sentence awarded to the appellant by the trial Court under section 337-F(iii), P.P.C. shall remain intact. The sentences awarded to the appellant under section 337(iii), P.P.C. and 302(b), P.P.C. in this case will run concurrently with the sentence awarded to the appellant in the connected Arms case, with benefit of section 382-B, Cr .P.C.
With the above reduction of sentence, Criminal Appeal No,328 of 2016 is dismissed and murder reference No,07 of 2017 is answered in negative.