Abdul Sami Khan, J.--Through this appeal under Section 410, Cr.P.C. Riaz alias Jajo appellant has called in question judgment dated 26.6.2012 passed by learned Additional Sessions Judge, Mianchannu, District Khanewal through which the appellant was convict ed for an offence under Section 302(b), PPC and he was sentenced to death. He was also ordered to pay compensation of Rs. 200,000/- to the legal heirs of Nisar deceased under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The appellant has filed the instant appeal against his conviction and sentence whereas the learned trial Court has sent a Reference under Section 374, Cr.P.C. which has been numbered as Murder Reference No. 78 of 2012 for confirmation or otherwise of the death sentence passed against Riaz alias Jaju appellant. We propose to decide both these matter through this consolidated judgment.
2. The prosecution's case unfolded in the FIR (Ex.PJ) is that the complainant was resident of Chak No. 135/16-L and he was agriculturist by profession. His son Nisar , aged about 32/33 years was doing business in leather factory who on 26.03.201 1 at about 6/7.00 pm came at the house of complainant. The complainant and other family members took their dinner together and thereafter Nisar went to parlour/bethak for sleeping at 9.00 pm whereas the complainant slept in the house with other family members. At about 12.00 night, Ashraf and Yasir came to the house of the complainant, they called the complainant who woke up and came out of home. Upon which the above said persons asked the complainant about Nisar because they had to take amount of shop from Nisar . The complainant told them that Nisar was sleeping in bethak upon which they all went to bethak but did not find Nisar on his bed. They went outside in the street when they heard noise from the house of Riaz alias Jaju. The complainant and his companions rushed to the house of Riaz alias Jaju where the electric bulb was alighted and they saw Riaz alias Jaju, armed with churri was grappling with Nisar who was making hue and cry to leave him.
The complainant party went ahead but within their view Riaz alias Jaju inflicted a churri blow which hit Nisar below left arm towards heart. Second blow of churri hit Nisar inner side of right thigh. Upon receiving injuries. Nisar fell down on the ground. Riaz alias Jaju inflicted fist blows on the face and nose of Nisar in fallen condition. Upon hue and cry raised by the complainant and his companions many people from the village gathered at the spot. Upon seeing the people Riaz alias Jaju brandish churri and raised lalkara to the effect that if anybody would come near, he would receive same treatment and thereafter he fled away from the scene of crime. The complainant and PWs came close to Nisar who succumbed to his injuries and died at the spot. The motive set up by the complainant in the FIR is that Riaz alias Jaju had suspicion that Nisar had illicit liaison with Rukhsana wife of his brother Justin Javed and before taking place of occurrence he had expressed his suspicion before some people for which grievance Riaz alias Jaju after inflicting churri blows had done to death Nisar son of the complainant. On the statement of the complainant formal FIR No. 99/11, dated 27.03.201 1 was registered at Police Station Sadar , Mian Channu in respect of an of fence under Section 302, PPC.
3. To substantiate its version at the trial, the prosecution produced as many as thirteen witnesses during trial before the learned trial Court. Ocular account was furnished by Barkat, complainant (PW5) and Yasir Rafique, (PW6).
Azeem (PW8) has provided evidence of last-seen in this case. Muhammad Anwar Shakir , SI/Investigating Officer (PW1 1) has conducted investigation in this case who deposed about various steps taken by them during the investigation of this case. The medical evidence was furnished by Dr. Muhammad Shahbaz (PW1) who conducted Post-mortem Examination on the deadbody of Nisar deceased on 27.03.201 1. Qamar Nadir (PW9) is witness of recovery of churri (Ex. PK) effected from Riaz alias Jaju appellant. Rest of the prosecution witnesses are more or less formal in nature.
4. The appellant in his statement recorded under Section 342, Cr.P.C. professed his innocence and pleaded false implication in this case. Neither he got recorded his statements under Section 340(2), Cr.P.C. in disproof of allegations levelled by the prosecution against him, nor he produced any defence evidence.
5. At the end of trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel .for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence Riaz alias Jaju appellant as mentioned in Paragraph No. 1 of this judgment. Hence, this appeal and connected Murder Reference.
6. It has been argued by learned counsel for the appellant that the prosecution has failed to prove the case against the appellant beyond reasonable shadow of doubt. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellant to the hilt by producing natural witnesses whose presence at the place of occur rence is beyond any shadow of doubt.
7. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also minutely scanned the record with great care and caution.
8. The occurrence in this case took place in the intervening night of 26/27.3.201 1 at 12.00 night whereas the matter was reported to the police on the statement of the complainant on 27.3.201 1 and formal FIR was chalked out at 3.10 am on the same day. A perusal of Post-mortem Examination of the deadbody of Nisar (Ex.- PA) shows that Dr. Muhammad Shahbaz (PW-1) has conducted post-mortem Examination on the deadbody at 9.45 am on 27.3.201 1 whereas the deadbody was shifted to hospital at 2.30 am. All these circumstances show that the crime in this case has been reported with suf ficient promptitude and no element of deliberation or consultation has been seen by us.
9. To prove the occurrence the prosecution has produced three witnesses out of whom the eye-witness account has been furnished by Barkat, complainant (PW-5) and Yasir Rafique (PW6). The occurrence in this case has taken place during night between 26/27.3 .2011 and both the above mentioned witnesses have seen the occurrence in the light of bulb enlightened at the place of occurrence at relevant time. A perusal of site-plan (Ex. PM) shows that at Point No. 6 the electric bulb was enlightened when both the eye-witnesses have seen the appellant inflicting churri blows on the person of the deceased which he has sustained on left side of his chest near heart and on inner side of his right thigh. While appearing before the, learned trial Court all the three witnesses have sufficiently proved arrival of the deceased in his house of his father on the fateful night to attend funeral ceremony of his aunt (Taiee) Mst. Rehmat Bibi and thereafter proceeding to the house of appellant wherein he had received two successive churri blows at the hands of the appellant. During course of arguments learned counsel for the appellant has, tried to convince us that the occurrence has not taken place in the house of the appellant rather the police has took the deadbody from village road which was lying on a cot. We, however , remained unable to appreciate this submission of learned counsel for the appellant because during his first visit- to the place of occurrence Muhammad Anwar Shakir , SI/ Investigating Officer (PW1 1) has collected blood-stained earth (Ex. PG) and made parcel of the same in presence of Yasir Rafique (PW6) and Azeem (PW6) from inside the house of the appellant which fact at one hand proved that the occurrence has taken place inside the house of the appellant and on the other hand the same also proved presence of above said two witnesses at the place of occurrence on fateful night. Muhammad Anwar Shakir , SI/ Investigating Officer (PW1 1) has also collect one shoe of the deceased of brown colour from the place of occurrence and took the same into custody vide recovery memo. Ex. PH. All these facts shows that the occurrence has taken place inside the house of the appellant, so the prosecution has proved the place of occurrence by producing cogent and confidence inspiring evidence.
10. Learned counsel for the appellant has also laid great emphasis on supplementary statement (Ex. DA) got recorded by Barkat, complainant (PW5) to prove glaring contradiction between the story introduced through FIR, Ex. PJ and tried to establish that the occurrence has not taken place as narrated by the complainant and other eye- witness who according to him were not present at the scene of crime at relevant time rather they have been called after taking place of the occurrence to become eye-witnesses in this case. In this context, suffice it to observe here that the story narrated in the FIR (Ex.PJ) as well as the evidence adduced by the complainant while appearing before the learned trial Court, the complainant and other witnesses remained stick to their stance that it was none else but the appellant who has committed the murder of deceased. In presence of FIR and statements adduced by the witnesses before the learned trial Court the supplementary statement alleged got recorded by the Investigating Officer cannot be given preference. The supplementary statement (Ex. DA) produced by the defence is, therefore, disbelieved by us in the circumstances mentioned above.
11. Even otherwise all the witnesses had explained time, date, specification of weapon of offence inasmuch as each and every segment of the occurrence in a straightforward and clear-cut manner during their statements adduced before the learned trial Court in addition to that they had also explained the mode and manner of taking place the occurrence. Although they had to endure a lengthy cross-examination by the defence wherein the learned counsel for the defence had asked multiple questions to shatter their credibility yet all of them remained consistence on all material points and remained stick to the extent of involvement and culpability of the appellant in this case. During their evidence both the eye-witnesses, PW5 and PW6 had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence in the light of bulb vis-a-vis identifying the appellant at the spot. All the witnesses have shown their natural conduct at the place of occurrence and they have brought the true story in the same manne r as they have witnessed at the spot. It is a case of single accused who had inflicted two churri blows to the deceased at the spot. During the trial nobody has been brought on.. record, except the appellant, who has committed the occurrence, thus, the plea of innocence taken by the appellant in his statement under Section 342, Cr.P.C. is a fact which is alien to the circumstances of this case in presence of confidence inspiring evidence produced by the eyewitnesses supported by medical evidence. As stated above the deadbody of the deceased was removed to the hospital for Post-mortem Examination from the house of the appellant and during trial the appellant has failed to justify as to why the deadbody was found in his house. If he has taken a particular stance that the police have taken the deadbody from the road of village then burden to prove this particular fact was on the shoulder of the appellant but he has not produced any evidence whatsoever in this regard and he has also not appear as his own witness under Section 340(2), Cr.P.C, to rebut the prosecution evidence inasmuch as to prove his stance of innocence.
12. Learned counsel for the appellant has also vociferously argued that the prosecution witnesses are related, interesting and enhance witnesses who have deposed against the appellant on the asking of the complainant otherwise, the appellant was not present at the scene of crime at relevant time rather he has falsely been implicated in this case. We, however , have remained unable to appreciate this submission of learned counsel for the appellant because being residents of the same locality the parties to this case are known to each other so there is no chance of mistaken identity of the appellant in this case. Admittedly , the complainant Barkat Ali (PW-5) is father of the deceased as well as Yasir Rafique (PW-6) is his cousin, so being close kith and kin of the deceased they would not allow the real culprit to go scot-free and substitute him with an innocent person. It is now well settled principle of law that the fact of relationship of the witnesses with the complainant or with the deceased would not be sufficient to smash the evidence adduced by such witnesses. Such PWs can be believed if intrinsic worth of their testimony inspires confidence of the Court and the same leads to an inference that the witnesses were present at the scene of the crime at relevant time, therefore, contention of the learned coun sel for the appellant that all the eye-witnesses are either related or chanc e witness has got no force. Reliance is placed on the case of Muhammad Ahmad and another v. The. State and others (1997 SCMR 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the testimony of an interested witness if it otherwise inspiring confidence of the Court. Even otherwise due to lack of civic sense independent persons do not come forward to become eye-witness especially in murder cases in order to avoid enmity with the accused. Reliance in this regard can be placed on the cases of Muhammad Ahmad and another v. The State and others (1997 SCMR 89) and Afzaal Ahmad v. The State (2003 SCMR 573). Azeem (PW8) is an independent witness who was relative of Mst. Rehmat Bibi, his aunt (Khala) and he has no direct relation with the deceased thus, he cannot be termed as related witness rather he is an indepen dent witness who has also fully involved the appellant in this case during his evidence before the learned trial Court.
13. The medical evidence in this case has been furnished by Dr. Muhammad Shahbaz Khan, Medical Officer, Tehsil Headquarter , Hospital, Mian Channu (PW1) who has conducted Post-mortem Examination on 27.03.201 1 and he found two stab-wounds on the deadbody of deceased at the same place as pointed out by the complainant and other witnesses in the FIR and in their statements while appearing before the learned trial Court. The doctor while appearing in the witness-box before the learned trial Court had categorically explained the seat and nature of injuries sustained by the deceased. He has also explained the weapon of offence which have been used to inflict injuries. He has to endure a lengthy cross-examination by the defence but nothing adverse to the case of prosecution qua nature of injuries can be extract from their mouth. Thus, we have no manner of doubt in our mind to observe that the medical evidence in this case is in line with the ocular account and the same provides full support to the ocular account in this case.
14. So far as the recovery of churri is concerned, the appellant was arrested in connection with this case on 31.03.201 1, he has led to the recovery of churri on 04.04.201 1 which has taken into custody vide recovery memo.
Ex. PK/PK-1 and the report of Forensic Science Laboratory (Ex. PP) is that the recovered churri was stained with blood. Thus, recovery ef fected from the appellant provide corroboration to the ocular account.
15. Now adverting to the motive part of this case, according to the prosecution the motive set up by the complainant in the FIR is that the appellant had suspicion that the deceased had illicit liaison with the wife of his brother but during trial while appearing before the learned trial Court the complainant has introduced a new motive to the effect that there was dispute of money between the appellant and the deceased and occurrence has taken place at a time when both of them were settling dispute of amount in the house of the appellant. In this context we may observe here that Barkat Ali, complainant (PW5) and other witnesses have improved their statements to the extent of motive just to save the honour of family , otherwise it does not appeal to a prudent mind that the appellant and deceased would settle dispute of amount in odd hours of a night in the house of the appellant and that too without informing anybody else. Thus, we have come to a definite conclusion that the appellant was carrying illicit relations with the wife of appellant's brother and that is why he was found in the house of the appellant during odd hours of night who was caught by the appellant red-handed and occurrence took place in the heat of patience. The motive with regard to settlement of amount introduced by the complainant in belated stage is a result of an afterthought and the same is not proved.
16. For what has been discussed above the prosecution has proved the case against the appellant beyond any reasonable doubt through confidence inspiring evidence in shape of ocular accoun t, recovery of churri and medical evidence. However , at the same time, we have observed that when both the parties have not brought on record the real cause of occurrence, it is the duty of the Court to dig out the truth from the earth. While relying on the case reported as Syed Ali Beopari v. The State (PLD 1962 SC 502) we are not persuaded to maintain capital sentence of death awarded to the appellant by the learned trial Court rather for the following reasons we, consider the death sentence too harsh which are as under: a) The appellant had no intention to commit the murder of the deceased but he has done him to death under the heat of passion when he found him in his house at odd hours of night, especially when he had already suspicion that the deceased had illicit liaison with the wife of his brother . b) The deceased was not Masoom-ud-Da m rather he has entered in the house of the appellant on fateful night to satisfy his lust. c) The occurrence has taken place at spur of moment without any premeditation.
17. Thus, in the above-mentioned circumstances the sentence of death awarded to the appellant Riaz alias Jaju under Section 302(b), PPC by the learned trial Court is not legally justified rather all the attending and surrounding circumstances of this case motivate us to hold that the case of the appellant falls under Section 302(c), PPC. His sentence of death under Section 302(b), PPC is hereby set aside.
However , as the prosecution has proved its case against the appellant without any reasonable shadow of doubt, therefore, he is convicted for an offence under Section 302(c), PPC and is sentenced to undergo rigorous imprisonment for 14 years. Benefit of Section 382, PPC is extended in favour of Riaz alias Jaju appellant.
18. In view of our discussion made above, Criminal Appeal No. 19-J of 2013 filed by the appellant is hereby dismissed with the modification made in the sentence of the appellant. Murder Reference No. 78 of 2012 is answered in negatie and the sentence of death is not confirmed .