ABDUL HAMEED BALOCH, J.---Through this judgment we intend to dispose of Criminal Appeal No. 273 of 2019, filed by the appellant against the judgment dated 29th July, 2019 (impugned judgment) passed by learned Additional Sessions Judge/MCTC, Pishin (trial court), whereby the accused Habibullah and Naseebullah were acquitted of the charge, whereas the appellant was convicted under section 302(b), Pakistan Penal Code (P.P.C.) and sentenced to death as Tazir and to pay compensation of Rs. 200,000/- (Rupees two hundred thousand) to the legal heirs of deceased Abdul Waheed recoverable as an arrear of land revenue under section 544-A, Cr.P.C. and in default to further suffer simple imprisonment for six (06) months. Murder Reference was also forwarded by the trial court for confirmation of the death sentence or otherwise. Further , the appellant was also convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment and to pay Rs. 100,000/- (Rupees one hundred thousand) as compensation to the legal heirs of deceased Arsalan under section 544-A, Cr.P.C. and in default to further suffer six months' simple imprison ment. The appellant was also convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment and to pay Rs. 100,000/- (Rupes one hundred thousand) as compensation to the legal heirs of deceased Bibi Haleema under section 544-A, Cr.P.C. and in default to further 'suffer six months' simple imprisonment. The sentences awarded to be run concurrently with benefit of section 382-B, Cr .P.C.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 08th September , 2018 (Ex: P/1-A) submitted by PW-1 Niaz Muhammad son of Noor Muhammad Caste Kakar Bazai, resident of Killi Chowkal Bostan that today the complainant was present in his house. At about 10:15 a.m. the complainant heard fire shots out side of his house and when he came out to inquire saw Abdul Hakeem son of Abdul Qayum, Hamayun son of Abdul Haleem, Izzatullah son of Faizullah were entrenched at the corner of the school in armed position, while Naqeebullah son of Azizullah, Ahmed Shah son of Abdul Hakeem, Ahmed. Gui son of Abdul Qayum were standing in armed position at their drawing room, whereas hear the house of Lal Muhammad accused Naseebullah, Habibullah and Qudratullah had entrenched in armed position. It was further alleged that as soon as the complainant came out from the gate accused Naqeebullah made firing on him, but he escaped luckily and he hidden himself in herbage. Meanwhile his son Arsalan Khan came out on which Hamayun made firing who fell on the ground. It was further alleged that on hue and cry of Arsalan his wife Mst Bibi Haleema came out on which accused Abdul Hakeem made firing due to which she became injured. It was further alleged that on hearing firing Abdul Waheed son of Lal Muhammad came out of his house and when he (Abdul Waheed) reached near the Bhaitak of their house accused Izzatullah made firing on Abdul Waheed who fell on the ground. The accused persons Naqeebullah, Ahmed Shah, Raham Gul and Naqeehullah, Qudratullah, Habibullah were making firing at their house and flew away from there. Thereafter , they shifting the injured to Civil Hospital Quetta in a vehicle, but on their way to hospital all the three injured succumbed to their injuries. With these averments case FIR No.17 of 2018 under sections 302, 324, 147, 148, 149, P.P.C. was registered with Levies Station Bostan District Pishin.
3. After registration of FIR, the investigation was entrusted to Abdul Malik Naib Tehsildar , who visited the place of occurrence. prepared site sketch Ex: P/8-B, took into possession blood stained earth of deceased Arsalan in presence of witnesses, secured 101 empty shells of Kalashnikov and seven empty shells of pistol from the venue in presence of witnesses, recorded statements of witnesses under section 161, Cr.P.C. The Investigating Officer went to Civil Hospital and completed proceedings under section 174, Cr.P.C. vide Ex: P/8-C to Ex: P/8-E. The Investigating Officer took into possession blood stained clothes of deceased Arsalan and Bibi Haleema at Civil Hospital Quetta, recorded statements of eye-witnesses at Civil Hospital Quetta , handed over dead bodies of Arsalan, Bibi Haleema and Abdul Wahee d vide receipts Ex: P/8-H, Ex: P/8-I and Ex: P/8-K. On 14th September , 2018 the blood stained clothes of deceased Abdul Waheed taken into possession. On 23rd September , 2018 the Investigation of the case was handed over to PW-8 Bashir Ahmed, who sent the blood stained clothes and blood stained earth of deceased persons to FSL for analysis and obtained its report vide Ex: P/.8-R. The Investigating Officer also obtained death certificates of deceased vide Ex. P/2-A to Ex: P/2-C. He prepared list of legal heirs of deceased vide Ex. P/8-M and Ex: P/8-N. On 13th February , 2019 arrested accused Habibullah and Naqeebullah and on 14th February , 2019 arrested accused (appellant) Izzatullah and on completion of investigation submitted incomplete challans vide Ex: P/8-L, Ex: P/8-S and Ex: P/8-T .
4. After submission of challan after codal formalities charge was framed on 21st March, 2019 and read oven to the appellant and co-accused to which they denied, whereafter , the prosecution in order to substantiate its charge produced following eight (08) witnesses: PW-1 Niaz Muhammad complainant of the case, he produced Fard-e-Biyan as Ex: P/1-A; PW-2 Dr. Ayesha Faiz Lady Police Surgeon. produced death certificates of deceased Arsalan, Abdul Waheed and Bibi Haleema vide Ex: P/2-A to Ex: P/2-C respectively; PW-3 Bismillah ocular witness, produced recovery memo of blood stained clothes of Bibi Haleema as Ex: P/3-A; PW-4 Muhammad Jaffar, recovery witness produced recovery memo of blood stained clothes of Arsalan vide Ex:P/4-A, recovery memo of empties of Kalashnikov and TT pistol vide Ex: P/4-B, PW-5 Khair Muhammad, eye-witness.
PW-6 Abdul Nasir , recovery witness of blood stained clothes of deceased Abdul W aheed vide Ex: P/6-A, PW-7 Abdul Kabir , circumstantial witness; PW-8 Bashir Ahmed Investigating Officer produced FIR No. 17/2018 as Ex; P/8-A, site map Ex: P18-B, inquest reports of deceased Ex: P/8-C, Ex: P/8-D and Ex: P/8-E, application for handing over dead body of Bibi Haleema and its receipt vide Ex: P/8-F and Ex: P/8-0, application for handing over dead body of deceased Arsalan and its receipt vide Ex: P/8-H and Ex: P/8-I, application for handing dead body of deceased Abdul Waheed and its receipt vide Ex: P/84 and Ex: P/8-K, incomplete challan Ex: P/8-L, list of legal heirs of deceased Abdul Waheed, Bibi Haleema and Arsalan vide Ex: P/8-M and Ex: P/8-N, Muraslas to FSL Ex: P/8-0, Ex: P/8-P and Ex; P/8-Q, FSL report Ex: P/8-R and incomplete challans vide Ex: P/8-S and Ex: P/8-T .
5. On completion of prosecution evidence the appellant and co-accused were exam ined under section 342, Cr.P.C., in which they denied the allegation of prosecution. The accused persons also recorded their statements on oath as envisaged under section 340(2), Cr .P.C.
6 On conclusion the trial court convicted the appellant Izzatullah in the manner as mentioned in para. 1 above, whereas acquitted acctfsed Habibullah and Naseebullah of the charge, hence the appellant is before this court.
Whereas the trial court forwarded Murder Reference for confirmation of the death sentences.
7. Ex: P/1-A depicts that the appellant along with absconding co-accused Abdul Hakeem, Hamayun were sitting on corner duly equipped with arms. The absconding accused Naqeebullah, Ahmed Shah, Ahmed Gul were equipped with fire arms had taken sighted on their own guestroom while acquitted accused Naseebullah, Habibullah and absconding accused Qudratullah equipped with arms from a but near the house of Lal Muhammad. All the accused persons made indiscriminate firing. The trial court had acquitted accused Nase ebullah and Habibullah on the ground that they had different object. The ingredients of unlawful assembly and common object not established.
The learned trial court had convicted and sentenced the appellant on three counts. The witnesses has ascribed specific role of firing on deceased Abdul Waheed to appellant. The appellant had not caused any injury to the witnesses or other deceased. The record reflects that another FIR. No. 18 of 2018 was lodged at 5:00 p.m., against Masood Ahmed and others in regard of an incident on the same place.
8. Learned counsel for the appellant contended that the prosecution witnesses are inter-se related to complainant.
The medical evidence is not corroborating the ocular account. In site plan the presence of witnesses were not shown. The statements of ocular account are full of contradictions. Despite availa bility of independent witnesses the prosecution did not record their statements. The conviction could not be based on inimical and interested witnesses. The statements of related witnesses need independent corroboration. Thy impugned judgment is based on surmises and conjectures. The prosecution has failed to establish motive. In the ends prayed for setting aside of the impugned judgment.
9. Conversely the learned counsel for the complainant as well as learned Deputy Prosecutor General strongly opposed the contention of learned couns el for the appellant and stated that the judgment of the trial court is well reasoned and needed not to be interfered. The prosecution has produced natural witnesses. Their presence at the relevant time was not denied by the defence. Mere relationship is no ground to discard the statements of prosecution witnesses. The prosecution has proved its case beyond any reasonable doubt and the impugned judgment needed not to be interfered and prayed for upholding the same.
10. Heard learned counsel and perused the available record with their assistance. The prosecution in order to substantiate its case produced as many as eight (08) witnesses. The prosecution case stands on the statement of complainant (PW-1), Bismillah PW-3 Khair Muhammad PW-5 and PW-2 Dr. Ayesha Faiz Lady Police Surgeon. The Investigating Officer PW-8 Bashir Ahmed conducted investigation on the basis of Fard-e-Biyan Ex: P/1-A submitted by PW-1 complainant Niaz Muhammad. The Investigating Officer visited the venu e of occurrence, secured blood stained earth, 101 empties of Kalashnikov , seven casing of pistol. On 14th September , 2018 the blood stained clothes of deceased Abdul Waheed were taken into possession, obtained FSL report. The record depicts that Ex: P/18-A was registered on 8th September , 2018 at 11:30 a.m., after seventy five (75) minutes of the occurrence, wherein PW-1 stated that due to firing of accused Abdul Waheed sustained injuries and he died on his way to hospital. On the fateful day three persons sustained bullet injuries and later on succumbed to the injuries. The complainant and the witnesses have assigned specific role of firing to the appellant upon deceased Abdul Waheed.
The complainant further stated that appellant's bullet hit Abdul Waheed due to which he died on his way to hospital.
The version of PW -1 is fully supported by the ocular account.
11. Learned counsel for the appellant contended that all the witnesses were related to complainant (PW-1). They were inimical towards the appellant. The prosecution willfully had not recorded statement of independent witnesses .The same has no force. The record reflects that the deceased Abdul Waheed had no relationship with the complainant. It is to be noted that on the fateful day three persons namely Bibi Haleema (wife of complainant), Arsalan (son of complainant) and Abdul Waheed son of Lal Muhammad were injured and succumbed to their injuries. The complainant and eye-witnesses stated that the bullet fired by absconding accused Abdul Hakim hit Bibi Haleema. The deceased Arsalan was hit by absconding accused Hamayun, whereas the appellant was hit Abdul Waheed. Now adverting to the value of statements of related witnesses. The testimony furnished by eye- witnesses can be referred that they were confidence inspiring, if found that the statements of related witnesses are truthful. The conviction can be awarded on such statements of related witness es. The eye-witnesses in their deposition neither made any improvements nor there appeared any glaring contradictions. Admittedly the complainant and ocular witnesses are related to each other . The testimony of eye-witnesses cannot be discarded on the ground that they are related. It is not the relationship but the intrinsic value of the evidence is to be considered. There is no hard and fast rule that the testimony of interested witnesses could not be taken into consideration without corroboration. The presence of eye-witnesses at the spot and their credibility could not be shattered by the defence except the relationship. The eye witnesses of the occurrence are as good as any other witness. The defence has failed to bring on record any false involvement or any ill will and inimical qua PWs with the appellant. Mere relationship is no ground to discard their 'evidence when their' statements were found straight forward, confidence inspiring. In this regard reliance is placed on the case of Ijaz Ahmed v. The State 2009 SCMR
99. It was held: "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 hip 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. This view receives support from the following reported judgments:
(i) Sheraz Tufail v. The State 2007 SCMR 518, (ii) Khair Muhammad and another v. State 2007 SCMR 158,
(iii) Amal Sherin and another v. State through A. -G. N.-W .F.P. PLD 2004 SC 371, (iv) Dosa and others v. The State 2002 SCMR 1578 , (v) Mulla Riaz Ahmad v. The State 2002 SCMR 626, (vi) Feroze Khan v. The State 2002 SCMR 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCMR 1473, (viii) Muhammad Amin v.
The State 2000 SCMR 1784 , (ix) Saeed Akhtar and others v. The State 2000 SCMR 383, (x) Mir Hassan and others v. State and others 1999 SCMR 1418 , (xi) Sharafat Ali v. The State 1999 SCMR 329, (xii) Sardar Khan and others v. State 1998 SCMR 1823 , (xiii) Wahid Bukhsh and others v. The State 1997 SCMR 1424 , (xiv)
Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 , (xv) State of Rajaathan v. Hanaman AIR 2001 SC, 282 and (xvi) State of Punjab v . Wassail Singh and others AIR 1981 SC 697.
What to speak of related witnesses, evidence of an interested witness even, cannot be outrightly discarded unless it is proved that the witness had involved the accused for .some ulterior motive and in case of interested witness, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and corroboration may be sought from the evidence. In this view, we are fortified by the following reported judgments:-
(i) Abdul Majeed v. The State 2001 SCMR 90, (ii) Suraj Pal v. State of UP AIR 1994 SC 748, (iii) State of Karnataka v. Bheemappa 1993 Cr.LJ 2609 (SC) and (iv) State of U.P. v. Ballabh Das and others AIR 1985 SC 1384.
In the instant case both P. Ws. 1 and 2 being father and mother were natural witnesses and therefore, their presence in the house, at the relevant time, was rightly believed by both the Courts below . The contention, therefore, has no force."
12. It is now well settled law that the conviction can be based on solely statement if found reliable. It may not be out of place to mention here that Qanun-e-Shahadat Order , (P.O. No. 10 of 1984) have excluded the well entrenched principle "unus nullus" (one is equal to none). It would be relevant to reproduce Article 17 of Qanun-e-Shahadat Order , 1984: "17. Competence and number of witness.---( 1) The competence of a person to testify , and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law ,
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other , if necessary and evidence shall be led accordingly: and
(b) in all other matters, the Court may accept or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
13. The provision of referred to Article make it clear that particular number of witnesses shall be required for the proof of any fact. The honorable Supreme court held in case Muhammad Mansha v . The State 2001 SCMR 199 : "8. As mentioned hereinabove no yardstick can be fixed as to whether statement of a solitary witness must or must not be relied upon for the simple reason that each case has its own peculiar circumstances which shall play a significant role and is motivating factor to determine the reliability of a solitary witness as the said aspect of the matter is to be dilated upon in the light of surrounding circumstances which may be taken into consideration or otherwise. We may mention here that such circumstances also cannot be confined within a limited sphere of any definition because the same may be infinitely diversified by the situation and conduct of the parties concerned.
"The only general rule that can be laid down is that the circumstances must be such as would lead the guarded decision of a reasonable and just man to the conclusion". We have also have the benefit of consulting C.D. Field on the Law of Evidence (page 4746) wherein it was observed as follows:-- "Thus evidence of a single witness is sufficient to sustain and may legally be made the sole basis for a conviction, the relevant section 134 having enshrined the well-recognised maxim that 'evidence has to be weighed and not counted'. Though the Legislature has placed no jurisdictional limitation on the power of a Judge to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from time to time evolved some rules and guidelines of circumspec tion as to when such evidence can be or cannot be acted upon without corroboration. ( Pema Dukpa v . State Sikkim, 1981 Cr .LJ 276)."
14. The learned counsel for the appellant contended that no recovery was effected from the appellant. The rule of prudent depicts that the recovery of crime weapon is not mandatory requirement of law. Same being corroborative piece of evidence. Reference is made to the case of Ashfaq Asghar v. The State 2013 YLR 2620 , wherein it was held that recovery of incriminating materia l is not necessary to record conviction if ocular account is convincing and worthy of credit as in the present case which also finds support from medical evidence.
15. PW-8 produced site map Ex: P8-B. Though in the site map the presence of witnesses is not mentioned.
Omission to indicate position of eye-witnesses in the site map cannot lead to interference of such witnesses being not present. The site plan is not substantive piece of evidence; therefore, mere omission to mention the position of eye-witnesses in the site map is not fatal to the prosecution case. The honorable Supreme Court in case Sardar Khan v . The State 1998 SCMR 1823 held: "20. The learned counsel next contended that in the site plan prepared in the case at the instance of police only presence of 4 accused who took part in the firing was mentioned while in the evidence before the Court the eye- witnesses implicated 6 accused. Therefore, the eye-witnesses were contradicted by the site plan, Exh. P.A. It is true that in the site plan the draftsman had shown presence of only 4 accused at point No.4 from where the accused fired at the deceased. The site plans are, however , prepared only to explain or to appreciate the evidence on record in the case. Site Plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case (See Taj Muhammad v. Muhammad Yusuf PLD 1976 SC 234 and Mst. Shamim Akhtar v.
Faiz Akhtar PLD 1992 SC 211). We are, therefore, of the view that omission H to mention in the site plan, Exh. PA, the names of all the accused, could not take away the probative force of the ocular testimony in the case."
16. The defence has not disputed the unnatural death of deceased. The death certificates were issued by Dr. Ayesha Faiz who produced the same as Ex:P/2-A. Ex: P/2-B and Ex: P/2-C. The same H certificates confirmed that the deceased were died due to fire-arm injuries. The medical evidence confirmed the ocular account with regard to seat of injuries, kind of weapon used in the occurrence. The ocular account furnished by the prosecution is trustworthy and reliable.
The medical evidence further corroborated the ocular account. The defence has failed to point out any reason that the witnesses charged the appellant falsely and substituted him with actual culprit. The honorable Supreme Court held in as Muhammad lqbal v . The State PLD 2001 SC 222 : Moreover we failed to persuade ourselves to hold that the accused was substituted by the complainant party because in the cases of murder falling under section 302, P.P.C. substitution of an accused who is actually involved in the commission of the crime is a rear phenomena in this country particularly in an incident in which single accused was involved by nominating him in the FIR from the very beginning. So much so if the parties are inter se related to each other , therefore, due to close kinship it is very hard to accept the theory of substitution. Reference in this behalf may be made to the cases of (i) Siraj Din v. Kala and another PLD 1964 SC 26; (ii) Rahim Bakhsh v.
Muhammad Iqbal and others 1976 SCMR 528; (iii) Zar Bahadar v. The State 1978 SCMR 136; (iv) Muhammad Ayub alias Nikka v. The State PLD 1983 SC 27; (v) Shaukat Javed v. The ,State PLD 1993 Pesh. 109 and (vi)
Ameer Ali v. The State 1999 MLD 758 ."
17. No such material contradictions, commissions or dishonest improvement has been observed. It is settled law that minor contradictions in a statement of witness are to be overlooked if found. The learned counsel failed to point out any material contradictions, omissions and improvements. Reliance is placed on the case of Ranjha v. The State 2007 SCMR 455 .
18. The record transpires that the trial court acquitted accused Habibullah and Naseebullah. The learned counsel contended that on the basis of same evidence co-accused were acquitted of the charge; therefore, the appellant could not have been convicted for the offence. The same has no force. The role ascribed to the acquitted co- accused is entirely different. No specific role ascribed to them, but in the case of appellant the eye-witnesses had categorically stated in the trial that the deceased Abdul W aheed died due to bullet fired by the appellant.
19. Now the quantum of sentence is remained to be answered. The record transpires that the real course of occurrence has not been disclosed by either of the side. The honorable Supreme Court held in Mukhtar Alam v Fazal Nawab's case 2020 SCMR 618 : "The complainant had also suppressed the motive for the murder , which the appellant stated was the earlier murder by the deceased of his brother . Under such circumstances it would be appropriate to modify the sentence under section 302(b), P .P.C. from death to that of imprisonment for life."
For the above reasons the appeal is partly allowed. The death sentence awarded to the appellant under section 302(b), P.P.C. on account of murder of deceased Abdul Waheed is modified to that of life imprisonment. The appellant is directed to pay compensation of Rs. 200,000/- (Rupees two hundred thousand) to the legal heirs, of deceased Abdul Waheed within the mean ing of section 544-A, Cr.P.C. and in case of default the appellant has to further suffer six months' simple imprisonment. Benefit of section 382-B, Cr.P.C. is also extended to the appellant.
Whereas the conviction and sentence awarded to the appellant on other two accounts i.e. murder of deceased Arsalan and Bibi Haleema is maintained. All the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
Resultantly the Murder Reference No. 13 of 2019 is answered in negative.