Muhammad Tariq Abbasi, J.--This judgment shall decide the above captioned Criminal Appeal and the Murd er Reference, as both are outcome of same judgment dated 01.11.201 1, passed by the learned Sessions Judge, Faisalabad, whereby in case FIR No. 111, dated 05.03.2007, registered under Section 302/34, PPC, at Police Station Dijkot, District Faisaiabad, Shaukat.Ali and Shakeel Ahmad (hereinafter referred to as the appellants) were convicted under Section 302(b), PPC and sentenced to death, with compensation of Rs. 50,000/- each, payable to legal heirs of the deceased and recoverable as arrears of land revenue.
2. The matter was reported to the Police by Muhammad Mushtaq (PW-2) through `fard biyan' (Ex.PB), with the contentions that on 5.3.2007, he alongwit h his son Muhammad Ashfaq (hereinafter referred to as the deceased ), brother Muhammad Ahmad (PW-3) and Iftikhar Ahmad (PW not examined), in order to proceed to Gojra, were standing at the bus stop; at about 1.30 pm, when the deceased was listening a phone, the appellants while armed with .12 bore repeater guns, attracted there; Shakeel Ahmad appellant raised a lalkara' that the deceased should not go alive, whereupon Shaukat Ali appellant, fired at the deceased, hitting on his back, as a result of which he fell down; Shakeel appellant also fired, which hit on chest of the deceased; thereafter both the accused made firing and the fire shots hit on different parts of the body of the deceased; the complainant party due to fear did not come near and the accused while firing and raising lalkaras' , that they had taken revenge of oppositio n of votes from the deceased, fled away . The deceased succumbed to the injuries at the spot; the occurrence was committed on the abetment of Muhammad Sadiq and Tariq Mehmood (co-accused since acquitted); on the basis of the above mentioned complaint, the-formal FIR (Ex.P A, was chalked out.
3. The case was investigated and challan was submitted in the Court. The formal charge against the appellants was framed or 6.7.2010, which was denied and trial was claimed, hence the prosecution witnesses were summoned and recorded; the prosecutior had got examined as many as 19 witnesses. The material witnesses with gist of their evidence were as under: i) PW-2 Muhammad Mushtaq, complainant as well cv an eye-witness of the occurrence, had deposed the sant( facts, as were narrated by him in the complaint (Ex.PB). ii) PW-3 Muhammad Ahmad , another eye-witness of the occurrence, had supported and corroborated the version of the complainant (PW -2) in all its four corners. iii) PW-4 Dr. Pervaiz Akhtar had conducted post-morterr examination of dead body of Ashfaq deceased anc prepared the post-mortem report (Ex.PD) and pictoria diagram (Ex.PD/1), Following injuries on the dead body were noticed:- a) A lacerated wound 5.05 cm x 4.05 cm x DNM or the left side close to sternum , 6 cm above an lateral to the above nipple. b) Multiple wounds of exit on the right side of nee) measuring each 3/4 cm x 3/4 cm at the are between 6 cm x 4 cm. c) A lacerated wound of entry 2 cm x 3 cm on the lel side of chest, 3 cm from the nipple. d) Multiple wound of exit 6 in number on the righ lateral side of chest at the area between 7 cm x cm. e) A lacerated wound of firearm entrance 5 cm x 3 cr on the right side of chest 1 cm below the rig', nipple. f) Multiple wounds of Firearm injury 6 in number of the back of right side of chest, below the scapula bone of area between 7x4 cm. g) Multiple wounds of firearm entrance 4 in number on the back of right side of abdomen at the arc between 8 cm x 3.05cm. h) Multiple wounds of exit 4 in number at the area between 4 cm x 3.05 cm on the right side of abdomen 3-1/2 cm from the umbilicus. i) A wound of fire-arm entrance 4 cm x 3 cm on the left side of penis. j) A wound of firearm exit 4 in number on the medial side of left buttock at the area between 5 cm x 3 cm.
According to the witness, all the injuries were anti mortem in nature, caused by fire-arms and cause of immediate death. iv) PW-12 Sarfraz Khan, SI and PW-14 Muhammad Hussain, SI had investigated the case, during which carried on the proceedings and prepared the documents, fully detailed in their statements.
4. On conclusion of the prosecution evidence and closure of the case, the appellants were examined under Section 342, Cr.P.C., during which the questions arising out of prosecution evidence were put to them, but they denied almost all such questions, while pleading in their innocence and false involvement in the case with mala fide. The question "Why this case against you and why the PWs have deposed against you?" was answered by both as under: "I and my co-accused who is my real brother also, are quite innocent, we have no concern whatsoever with the commission of alleged offence. I was not present in the village on the date of occurrence rather I was available at the house of my in law about 20 miles away from the alleged place of event. Similarly my co-accused was also not present at the place of occurrence and he was also in his house. Deceased was also known as Januu notorious character of the village and was source of evils like money extorting and teasing of girls. He was done to death by some one unknown person or persons neither we nor the complainant are so call the eye-witnesses were present at the time of murder . On the other side complainant party was having grudge against us because two years back a fight took place between us and the complainant's side in which the leg of the deceased was fractured as result of cross firing. Besides 2/3 times quarrels arose between us and the boys of the comp lainant party prior to the present occurrence. Further we have no concern with the election as none from us ever contested the election of any public office, so there was no motive with us to commit the murder of deceased. Anyhow complainant or witnesses who are related to each was having motive to falsely implicate us as accused while playing in the hands of political personalities of the villagelarea."
They did not opt to lead evidence in their defence or make statements under Section 340(2), Cr.P.C. Finally , the impugned judgment was passed in the above mentioned terms. Consequently , the appeal in hand.
5. The learned counsel for the appellants have argued that the appellants are innocent and falsely involved in the case; neither the eye-witnesses were available at the spot nor they had seen the occurrence and they had become false witnesses; statements of eye-witnesses being full of material contradictions, were not believable, but the learned trial Court had erred in not considering the said aspect; the alleged motive was not proved and established and rightly observed so by the learned trial Court; no empty was sent to the laboratory , hence the alleged recoveries of weapons from the appellants were inconsequential, but the learned trial Court had failed to give any consideration to the said fact; the prosecution case and the charge against the appellants was not established and proved; hence they were entitled to acquittal and as such the impugned judgment could not be termed as valid and justified.
6. On the other hand, the learned Deputy District Public Prosecutor , assisted by the learned counsel for the complainant, has vehemently opposed the appeal, while supporting the impugned judgment to be well-reasoned and call of the day .
7. Arguments of all the sides have been heard and record has been perused.
8. It was a day light occurrence and promptly reported to the Police, hence no chance of any deliberation or consultation. Muhammad Mushtaq complainant and Muhammad Ahmad, when entered in the witness box as PW-2 & PW-3 respectively , categorically deposed that in their presence and within their view, the appellants armed with firearms, attracted at the spot and by firing, caused injuries to Muhammad Ashfaq, resulting into his death at the spot. Both the witnesses were cross-examined by the defence at length, but their statements could not be contradicted. Admittedly , both the witnesses were closely related inter se as well as with the deceased, but their no previous grudge or enmity , with the appellants could be established on the record, therefore, no reason cause or justification to discard their testimony on the basis of mere relationship, which otherwise is trustworthy and confidence inspiring. In this regard, reliance can be placed on the case titled "Ijaz Ahmad versus The State" reported as 2009 SCMR 99 , wherein the august Supreme Court of Pakistan has held as under: "... mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witnesses 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 on account of the occurrence, by no stretch of imagination can be regarded as an "interested witnesses". 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 ."
9. The above mentioned ocular account gained support from the medical evidence, led by Dr. Pervaiz Akhtar (PW- 4), post-mortem report (Ex.PD) and picto rial diagram (Ex.PD/1), when the above mentioned fire-arm injuries on different parts of the body of the deceased, resulting into immediate death were observed. In this way it can safely be held that the ocular account is in line with the medical evidence.
10. During statements of the above named eye-witnesses, it came on the record that their houses were situated at a distance of 02 acres from the spot. Both had satisfactorily explained and justified their presence at the spot and witnessing of the occurrence. In this way, the above mentioned arguments with regard to non-availability of the witnesses at the spot and not seeing the occurrence, are nothing, but bald contentions, hence discarded. The alleged motive was opposition of the deceased, against the appellants in some election. No detail of any such election has been brought on the record. In this way, the alleged motive could not be proved and rightly held so by the learned trial Court, in the impugned judgment. Therefore, the real cause, resulting into death of the deceased at the hands of the appellants is still shrouded in mystery .
11. The recovery of 12 bore pump action gun from Shaukat Ali appellant and securi ng it through memo (Ex.PG) has been alleged. The recovery of such kind of, weapon from Shakeel Ahmad appellant has also been stated, but neither any recovery memo has been tendered in evidence, nor any witness has made any statement about the alleged recovery . Furthermore, no empty collected from the spot, for comparison was sent to the laboratory and as such the above mentioned alleged recoveries have become inconsequential.
12. For what has been discussed above, we are of the view that the impugned judgment, towards conviction of the appellants for charge under Section 302(b), PPC, being result of correct appreciation and evaluation of the material available on the record, is quite justified, hence does not requires any interference. As about quantum of sentence to the appellants, it is stated that as observed above, the alleged motive could not be established; both the appellants made one fire shot at the deceased and recovery of the weapons, from them have gone inconsequential, which facts, in the light of the law laid down in the cases titled "Hasil Khan versus The State and others "' reported as 2012 SCMR 1936 and "Naveed alias Needu and others versus The State and others" (2014 SCMR 1464 ), are valid grounds for giving premium to the appellants in quantum of their sentence.
13. Resultantly , the conviction of the appellants awarded by the learned trial Court, through the impugned judgment is maintained, but their death sentence is altered to imprisonment for life. The appellants shall be entitled to the benefit of Section 382-B, Cr.P.C. The above mentioned amount of compensation prescribed by the learned Trial Court will remain the same but in case of its non-payment, the appellants would further undergo simple imprisonment for six months, each. The disposal of the case property shall be as directed by the learned trial Court, in the impugned judgment.
14. With the above mentioned modification in sentences of the appellants, the Criminal Appeal No. 1804 of 2011 is dismissed , whereas Murder Reference No. 48 of 2012 is answered in Negative and death sentence of the appellants Shaukat Ali and Shakeel Ahmad is not confirmed .