ABDUL HAMEED BALOCH, J.--- This Criminal Appeal has been filed by the appellants against the judgment dated 07.05.2019 ("the impugned judgment") passed by the learned Additional Sessions Judge Nasir Abad at Dera Murad Jamali ("the trial court"), whereby the appellants were convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C.") to suffer life imprisonment as Tazeer and to pay compensation amounting to Rs.2,00,000/- (two lac) each to the legal heirs of deceased as per provisions contained under section 544-A, Cr.P.C, or in default whereof to further undergo S.I. for six (06) months. The benefit of Section 382-B of the Criminal Procedure Code, 1898 ("Cr.P.C.") was also extended in their favour.
2. Brief facts of the prosecution case are that on 19.12.2017, at about 11:00 a.m. the complainant Nasir Ahmed lodged an FIR No.43 of 2017 at Police Station Manjhoo Shpri, alleging therein that on the stated date he along with his uncle Imam Din and cousin Sadiq Ali left their village for Bari Shakh for irrigation their land and when at about 10:00 am they reached Goth Wahid Baksh Gola, meanwhile accused persons Mor Khan, Sooba Khan and Noor Muhammad armed with TT pistols came in front of them and told them today they will not spare them alive and made indiscriminate firing upon them, resultantly Imam Din died at the spot. The motive behind the occurrence was old enmity.
3. After completion of investigation, challan was submitted before the trial Court. Thereafter , on 21.01.2018, charge was framed and read over to the appellan ts, to which they did not plead guilty and claimed trial. During the trial, the prosecution produced following six witnesses:- I) PW-1,Naseer Ahmed (complainant), who produced written report Ex.P/1-A.
II) PW -2, Sadiq Ali, eye-witness of the occurrence.
III) PW-3, Javed Ahmed Constable, (Recovery witness) who produced Blood Stained Qameez as Ex-P/3-A, parcel No.5 as Article P/1, sample of sealed parcel as Article P/2 and Qameez as Article P/3.
IV) PW-4 Abdul Rahim Constable, who produced site inspection memo. as Ex-P/4-A, blood-stained made of deceased Ex-P/4-B, parcel No. as Article P/4, sealed sample Article P/5, blood stained mud as Article P/6, recovery memo of seven live cartridges of TT pistol as Ex-P/4-C, parcel No.2 as Article P/7, sealed sample as Article P/8, 07 empties as Article P/9, recovery memo of Pistol recovered from accused Mor Khan as Ex-P/4-D, parcel No.3 as Article P/10, sample of seal as Article P/11, 03 live rounds as Article P/12 and Pistol as Article P/13, recovery memo of Pistol recovered from accused Sooba Khan as Ex-P/4-E, parcel No.4 as Article P/14, sample of seal as Article P/15, pistol as Article P/16 and 02 live rounds as Article P/17.
V) PW-5, Dr. Nasrullah (Medical Officer) DHQ Hospital Dera Murad Jamali, who produced MLC No.1538 of deceased Imam Din as Ex-P/5-A.
VI) PW-6, Elahi Bakhsh SI (Investigation Officer). Who produced the FIR Ex.P/6-A, site map as Ex-P/6-B, recovery memo of weapon as Ex-P/6-C, inquest report of deceased as Ex-P/6-D, challan No.3/18 as Ex- P/6-E, FSL report as Ex-P/6-F and Ex.P/6-G, challan No.3-A/18 as Ex. P/6- H .
4. On- conclusion of prosecution evidence, the appellants' statement under section 342 of the Cr.P.C. was recorded, in which he once again professed his innocence, while he did not opt to record his statement on oath as envisaged under Section 340(2) of the Cr.P.C. and also did not produce any defence witness in his favour. The learned trial court, on conclusion of the trial, convicted and sentenced the appellants as mentioned hereinabove, hence this appeal.
5. Learned counsel for the appellants contended that the appellants are innocent and have falsely been implicated by the complainant due to previous enmity; that the statements of the prosecution witnesses are contradictory with each other; that the impugned judgment suffers from misreading and non-reading of evidence; that the eye witness are inter se elated and interested witnesses; that the plea of previous enmity is lacking independent corroboration; that on the basis of mala fide intention the complainant nominated the appellants for commission of offence; that there is contradiction amongst the statements of the prosecution witnesses; that nothing has been recovered from the appellants nor there is any incriminating evidence available against the appellants to connect him with the commission of the offence; that there are material irregularities and illegalities in the impugned judgment, which is liable to be set-aside. He lastly urged for acquittal of the appellants.
6. Conversely, learned counsel for the complainant and learned DPG strongly opposed the contention of learned counsel for the appellants and contended that the prosecution has successfully proved its case against the appellants through confidence inspiring evidence; that despite lengthy cross-examination, the defence failed to shake the statements of the witnesses; that all the witnesses have recorded their statements in line with each other; that the learned trial court has rightly convicted the appellants for commission of offence. He lastly urged for dismissal of the appeal.
7. We have heard the learned counsel for the parties and have perused the record with their able assistance.
The case of prosecution rests upon testimonies of two ocular witnesses, recovery of crime weapons, recovery of empties, positive FSL reports and medical evidence. As per death certificate Ex-P5-A, issued by PW-5 the deceased died due to firearm injuries. The defence did not dispute the unnatural death of the deceased.
8. PW-1 (eye-witness) while appearing before the trial court deposed the same fact as narrated in the report Ex-P/1-A. PW-2 while corroborating the PW-1 deposed in the same manner. According to PW-1 and PW-2 they were accompanying the deceased when the appellants and absconding accused made firing. The testimonies of both the ocular witnesses remained firm on each material point and their statements are corroborating each other. The defence did not deny the presence of the ocular witnesses at the place of the occurrence. Since the occurrence took place at broad day and the parties knew each others, therefore there is no probability of the mistaken identification of the culprits. It cannot be accepted by the prudent mind that the relatives let the real culprit and implicate the innocent persons. Even otherwise the FIR was lodged promptly after one hours of the occurrence without any delay, therefore the deliberation and consultation on the part of the complainant cannot be considered. Since the occurrence was stated to have taken place in a broad daylight and the appellants and absconding accused have specifically been nominated by PW-1 and PW-2 (eye-witnesses) with role of firing upon the deceased.
Both the eye-witnesses remained firm on all the material aspect of the case by furnishing confidence inspiring evidence, as such cannot be discarded. In this reliance is placed on the case of Muhammad Akram v. State (2019 SCMR 610), whereby the Hon'ble Supreme Court of Pakistan observed as under: "The complainant Fiaz Ali (PW1) and Muhammad Shafique (PW2) while appearing before. the trial court remained consistent on all the material aspects of the case. They in a straightforward manne r held the appellant responsible for the murder of Muhammad Riaz. The main argument of learned counsel for the appellant is that it was a night time occurrence and no source of light has been mentioned by the complainant in the FIR. It has been observed by us that in the site plan which was prepared on the instructions and pointation of the witnesses, the availability of 1000 watt rod and 200 watt bulb at points E and F respectively has been shown to be lit. Even otherwise, the parties are closely related to each other and identification of a close relative even in low light is not a big deal. Dr. Muhammad Aslam Awan (PW7) medically examined Muhammad Riaz in injured condition, whereas Dr. Muhammad Nazir (PW-11) conducted post-mortem examina tion on the dead body of Muhammad Riaz and observed five entry wounds on the person of deceased. According to doctor (PW11), injuries Nos. 1, 3, 4, 5 and 6 were caused by firearm weapon. The probable time between death and postmortem as noted by doctor coincides with the ocular account. It has been observed by us that the learned appellate court has excluded recovery of revolver from the appellant and positive report of FSL from consideration due to the reason that the empties and the revolver were sent to the office of FSL on the same day after the arrest of appellant. Even if the recovery is excluded from consideration being legally inconsequential, it has been observed by us that the direct evidence in the form of ocular account furnished by complainant Fiaz Ali (PW 1) and Muhammad Shafique (PW2) is confidence inspiring which has the support of medical evidence. In these circumstances, we have no hesitation to hold that the prosecution has been successful in provin g its case against the appellant beyond reasonable doubt."
9. Learned defence counsel raised serious objection that both the eye witnesses are inter se related and interested witnesses. It may be pointed out here that mere Relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrencc, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. Even otherwise the occurrence was stated to have taken place in agricultural field and the defense has failed to point out that the place of occurrence was thickly populated area. The presence of the ocular witnesses at the scene of crime is natural which has further been corroborated by the site plan Ex-P/6-B. The objection so raised by the defence is not supportive.
For rendering this view, we are fortified from the dictum laid down by the Hon' able Supreme Court of Pakistan on the case of Ijaz Ahmed v. State 2009 SCMR 99, whereby it has been held as under: "9. As regards the contention that both the eye-witnesses were related and thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy.
It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. "
10. As far as the recovery of crime weapons and empties are concerned. As per PW-4 on the fateful day they under the supervision of PW-6 visited the site and collected seven empties, secured blood stained earth and prepared site plan and thereafter proceeded in search of nominated accused and at about 1:05 a.m. the appellants were arrested and two TT pistols were recovered from their possession, thereafter the TT pistols and empties were dispatched to the Firearms Expert on 26.12.2017. The FSL report Ex-P/6-F shows that the empties collected from the place of occurrence were fired from the TT pistols recovered from the possession of the appellants.
In view of the above discussion, we are of the considered opinion that the prosecution has successfully proved the instant case against the appellants through promptly lodged FIR, confidence inspiring ocular testimony, recovery of crime empties from the spot supportive medical evidence, arrest of the accused-appellants within a short span, the recovery of crime pistol followed by positive report of the firearms expert against the appellants. The learned trial court has rightly convicted and sentenced the appellants, as such the conviction and sentence awarded by the trial court vide impugned judgment is hereby maintained. The appeal is dismissed.