ABDUL HAMEED BALOCH, J.---This criminal appeal has been directed against the judgment dated 06th January , 2020 (impugned judgment), passed by learned Sessions Judge Zhob (trial cour), whereby the appellant was convicted under section 302(b), Pakistan Penal Code (P.P.C.) and sentenced to suffer life imprisonment as Tazir and liable to pay an amount of Rs. 50,000/- (Rupees fifty thousand) as compensatio n to the legal heirs of deceased as provided under section 544-A, Cr.P.C. and in default thereof to further suffer six months simple imprisonment.
Benefit of section 382-B, Cr .P.C. was also extended in favour of the appellant.
2. The brief facts as gleaned from the fard-e-Biyan dated 03rd April, 2015 (Ex: P/1-A) submitted by complainant Nawab Khan that the complainant used to sell cloth on motorcycle in Zhob City and nearby villages. It was stated that the sister of complainant is wife of Abdul Haleem (bother of the accused), who was beaten by womenfolk of accused family , as a result she got injured and hot words were exchanged between them and Muhammad Umar . It was alleged that on the fateful day the accused Muhammad Umar took his sister-in -law (URDU TEXT) to Mehmood Clinic for treatment and informed them on telephone to come to the clinic, on which the complainant, his brother Ajab Khan (deceased) and Kamran Khan reached there. It was alleged that his brother Ajab Khan and accused got busy in talking in front of the clinic, while the complainant and Kamran khan procee ded towards Civil Hospital Zhob and at about 4:10 p.m. after covering a little distance they heard fire shots and saw that accused Muhammad Umar opened fire with pistol on Ajab Khan and when they moved towards the clinic the accused fled away on his motorcycle in the streets. They took the injured to hospital but he succumbed to his injuries on his way. With these allegations FIR No. 40 of 2015 under section 302, P .P.C. was registered with Police Station Zhob.
3. After registration of FIR PW-7 Ghulam Qadir IP was entrusted with the investigation, who reached casualty of Civil Hospital Zhob and completed proceedings under section 174, Cr.P.C. vide Ex: P/7-C, took into possession blue colour trouser (shalwar) of decease d through memo P/3-A, recorded statem ents of witnesses under section 161, Cr.P.C. On the pointation of complainant the Investigating Officer inspected the site and prepared site map vide Ex: P/7-B, secured blood stained earth vide Ex: P/3-B and recorded statement of witness Kamran. On 4th April 2015 the Investigating Officer recorded statement of eye-witness Mustafa. The Investigating Officer sent the blood stained trouser and earth to FSL and obtained its report vide Ex: P/7-E and submitted incomplete and supplementary challans vide Ex: P/7-D and Ex: P/7-F . The Investigating Officer also obtained Death Certificate vide Ex: P/5-A. On 06th March 2019 the investigation of the case was handed over to PW-8 Sher Ali SI who arrested the accused. During investigation the accused made disclosure vide Ex: P/6-A and pointed out the place of occurrence vide memo Ex: P/6-B and after completion of investigation submitted challan ride Ex: P/8-A before the trial court.
4. After fulfilling the requisite formalities the learned trial court framed charge which was read over to the accused to which he denied and claimed trial. The prosecution in order to substantiate the charge produced following witnesses: PW-1 Nawab Khan is complainant of the case who produced Fard-e-Biyan vide Ex: P/1-A; PW-2 Mustafa Khan is eye-witness of the incident; PW-3 Ayub Khan SI is recovery witness, who produced memo of blood stained shalwar of deceased Ajab Khan vide Ex: P/3-A and memo of blood stained soil vide Ex: P/3-B; PW-4 Kamran Khan is also eye-witness of the occurrence; PW-5 Dr . Shahbaz Khan Medical Of ficer DHQ Hospital Zhob, who produced death certificate of deceased as Ex: P/5-A; PW-6 Rozi Khan ASI is witness of disclosure memo and pointation memo vide Ex: P/6-A. and Ex: P/6-B; PW-7 Ghulam Qadir IF' is the first Investigating Officer, who produced FIR as Ex: P/7-A, site map as Ex: P/7-B, inquest report as Ex: P/7-C, incomplete challan as Ex: P/7-D, FSL Report as Ex: P/7-E and supplementary challan as Ex: P/7-F; PW-8 Sher Ali SI is the secona Investigating Of ficer who produced supplementary challan as Ex: P/8-A.
5. On conclusion of prosecution evidence the statement of appellant was recorded under section 342, Cr.P.C., in which he once again denied the accusation and pleaded innocence. The appellant neither opted to record his statement on oath within the meaning of section 340(2), Cr .P.C. nor produced any witness in his defence.
6. On conclusion of trial the learned trial court heard arguments and thereafter convicted and sentenced the appellant vide impugned judgment in the manner as mentioned in para No.1, hence the appellant is before this court.
7. Learned counsel for the appellant contended that the impugned judgment is result of misreading and non- reading of the material available on the record. The prosecution has failed to prove the motive. The occurrence had taken place in populated area where so many shops were situated but the prosecution has not recorded statement of any independent witness. All the witnesses are inter se related lacking independent corroboration. The prosecution has failed to collect any incriminating evidence connecting the appel lant with the commission of the crime. No recovery of whatsoever was effected from the appellant. Even the prosecution did not collect empties from the place of occurrence. The prosecution withheld the best evidence, as such presumption under Article 129(g) of Qanun-e-Shahadat Order , 1984 goes against the prosecution. The prosecution has miserably failed to establish the charge through concrete evidence, thus the impugned judgment is liable to be set aside. The learned counsel placed reliance on Noor Muhammad v. The State 2010 SCMR 97, Muhammad Akram v. The State 2009 SCMR 230, Faryad Ali v. The State 2008 SCMR 1086 and Khalid alias Khalidi v. The State 2012 SCMR 327.
8. On the other hand the learned Deputy Prosecutor General appearing for the State strongly opposed the arguments so advanced by the learned counsel for the appellant and while supporting the impugned judgment contended that sufficient material is available on the record to connect the appellant with the commission of offence. The ocular account is supported by medical evidence. The impugned judgment of the trial court is based on proper appreciation of evidence and has come to the right conclusion needed not to be interfered.
9. Heard learned counsel for the appellant and learned DPG and have also gone through the record, In order to establish the charge the prosecution has produced as many as eight witnesses, out of whom PW-Nawab Khan is complainant, PW-2 Mustafa and PW-4 Kamran Khan are claiming to be eye-witnesses of the occurrence. PW-3 Ayub Khan SI is the witness of blood stained trouser (shalwar), PW-6 is witness of disclosure of appellant, whereas PW-5 Dr. Shahbaz Khan examined the deceased. Before dilating upon the testimo ny of ocular account it would be relevant to first discuss the medical evidence to establish unnatural death of the deceased.
10. PW-5 Dr. Shahbaz Khan Medical Officer Civil Hospital Zhob stated that on 3rd April 2015 injured Ajab Khan was brought to hospital. He examined him and during first aid therapy the injured had expired. He produced MLC/death certificate as Ex: P/5-A. It would be appropriate to produce the MLC: "The injured brought to casualty in gasping condition with the following injuries: I. Wound on inferior surface of right leg. Exit of wound on anterior surface of left leg.
2 Two circular wounds with inverted margin on upper surface of right buttock.
During the first aid therapy he has expired. After confirmation of death the dead body handed over to his close relatives.
Duration of wounds was fresh, and object used was gunshot.
Cause of death was massive bleedings from vital organs."
11. The bare perusal of MLC of deceased would establish the fact that the death of the deceased was unnatural.
The deceased received fire arm injuries on his person. Even the defence has not disputed the unnatural death of the deceased.
12. Now adverting to the ocular account furnished by PW-1 Nawab Khan, PW-2 Mustafa Khan and PW-4 Kamran Khan. The application for registration of the case (Ex: PR-A) was submitted by PW-1 Nawab Khan, wherein he specifically named the accused Muhammad Umar for making firing upon deceased Ajab Khan which resulted into bullet injuries upon the person of the dece ased. The complainant in Ex: P/1-A stated that at the time of occurrence Kamran Khan was present. The witness es in their testimony have correctly stated the date, time and venue of occurrence and manner of occurrence. The witnesses are near related with the appellant. PW-1 fully corroborated the contents of Fard-e-Biyan Ex P/1-A. The statements of eye-witnesses are in line with each other . The role of firing was specifically assigned to the appellant by the witnesses.
13. So far as the objection of the learned counsel for the appellant that the witnesses are closely related to the complainant and have enmity with the appellant. No doubt PW-1, PW-4 and appellant are close relatives. It is established principle of law that there relationship of a witness with deceased is no ground to discard his testimony if he otherwise appears to be truthful and his presence at the venue of occurrence is probable. Mere relationship of witness would not dub him as interested witness because interested witness is one who has a motive to falsely implicate the accused, is biased, partisan or inimical towards the accused. It would be pertinent to mention here that related witness, particularly in murder cases, may be found more reliable because on account of their relationship with the deceased would not let go the real culprit or substitute the real person. The evidence of related witness who is not found inimical and is confidence inspiring would hardly need any corroboration. Reliance is placed on the case of Muhammad Akram v. The State 2015 YLR 116. In Muhammad Abbas alias Abbasio's case the Honorable Supreme Court held: "--- Of course both these P. Ws. are related to the deceased but it is a settled proposition of law that mere relationship would not discredit a witness unless his evidence does not inspire confidence, i.e. discrepant is belied by the medical evidence or there was any motive to falsely implicate the accused. ----"
The honorable Supreme Court in Abdul Rauf's case 2003 SCMR 522 held: "We have given our anxious consideratio n to the main contention rated by the learned counsel for the appellant in support of this appeal that the prosecution case was doubtful for want of availability of independent corroboration to the ocular account of related witnesses . We may observe that relationship itself is no ground to discard and discredit the testimony of eye-witnesses unless it is shown that they are partisan and interested witnesses. The eye-witnesses in the present case undoubtedly are related to the deceased but they have been found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration. However , in the present case as discussed above, the ocular account is seeking ample support from the motive, the medical evidence and the attending circumstances."
The Honorable Supreme Court further held in Khadim Hussain's case, PLD 2010 SC 669 : "7. It is an admitted feature of the case that eye-witnesses were related to deceased but on this score their statements could not have been discarded. It is well-settled by now that merely on the basis of inter se relationship the statements of prosecution witnesses who stood firm to the test of cross-examination cannot be discarded especially when sufficient corroboratory material is available. If is to be noted that only for the safe dispensation of justice corroboration is necessary in certain given circumstances but the scope of this principle cannot be extended to the case of ancillary facts testified by the witness. (Riaz Hussain v. The State 2001 SCMR 177). It is the intrinsic value of the statements of prosecution witnesses which is to be examined and not the relationship. There is no cavil to the proposition that in "such like cases the Court is required to look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction and this is what is meant by saying that the statement of an interested witness ordinarily needs corroboration -----"
14. The learned counsel for the appellant contended that the FIR was lodged with the delay of thirty five (35) minutes. The contention has no force. PW-1 promptly registered the FIR. It appears from MLC Ex: P/5-A that the injured was brought by complainant to the hospital. The presence of the complainant was not disputed at the place of C occurrence. The FIR was registered by the complainant, who was also eye-witness, deposed consistently the facts mentioned in the FIR, as such there was no reason to discard the FIR, which was promptly lodged.
15. The next contention of the appellant is that the sister of the deceased was not produced, as such presumption goes against the prosecution that if the referred witness was produced she would not favour/support the prosecution case. The court takes into account quality of evidence not quantity . Even otherwise the sister of the deceased is residing with the appellant's family , how she could record evidence against him (appellant). It is well settled principle that conviction could be based on sole statement of witnesses if found reliable.. Even the prosecution cannot be bound to, produce each witness when name appears in the column of witness in the challan.
16. Needless to observe that the substitution is rear phenomena. Why the brother of the deceased let the real culprit to free and implicate an innocent person? The record transpires that the appellant had suggested that deceased had enmity with one Salar , but in this regard neither the appellant recorded his statement under section 340(2), Cr.P.C. nor produced any evidenc e. Mere suggestion to the witness could not be a ground to discard the statement of truthful witness. In the case of Allah Ditta v . The State PLD 2002 SC 52 , it was held as under: ----. It is also to be noted that admittedly prosecution witnesses Muhammad Sadie and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir . In addition to it, it is also not possible for them that they would allow real culprit to go scot-free and falsely involve another person for the commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomenon in our system of criminal justice."
17. So far as contradictions in the statements or witnesses are concerned, the same being minor are not sufficient to make the case of prosecution doubtful. Reliance is placed on Qaisar Khan v. The State 2009 SCMR 471.
Relevant portion thereof is reproduced as under: ".......Both these witnesses had given consistent statements and they have corro borated each other on material points. The minor contradictions pointed tout in prosecution case are negligible and could be safely ignored."
18. As far recovery of crime weapon is concerned. The rule of prudence that the recovery of crime weapon and empties is not mandatory requirement of law. The same is being corroborative piece of evidence. In absence of such corroborative evidence in respect of these incriminating articles which relates to ancillary proceeding of investigation would have no direct impac t on ocular account. They would not be fatal to the trust worthy , credible and confidence inspiring of direct evidence. Reliance is placed on the judgment of this court reported in Saleh Muhammad alias Hashim Marri v . The State 2013 PCr .LJ 692 .
19. The failure to prove motive does not fatal the stop of prosecution. The hono rable Supreme Court in case of Nizamuddin v . The State 2010 SCMR 1752 held: "7. As far the question of absence of motive is concerned in case of murder it may be stated that even failure of the prosecution to prove the motive not fatal to the prosecution.---"
20. The medical evidence produced by the prosecution fully corroborates the ocular account Furnished by the prosecution witnesses. Ex: P/1-A transpires that the deceased sustained fire arm injuries. The statements of ocular witnesses are unison and have corroborated each other . Despite cross-examination the defence has failed to shatter the statement of ocular witnesses. Reliance is placed on the case of Mazhar Ellahi v. The State 2020 SCMR 586 , wherein it was held: "2. With the assistance of the learned counsel for the petitioner as well as the learned Law Officer , we examined the record to find out a remarkable promptitude in registration of the case, examination of the injured and autopsy of the deceased soon thereafter . Occurre nce took place within the bounds of the locality where presence of the witnesses, particularly one having extensive injuries cannot be viewed with suspicion. We have otherwise found their statements in a complete unison with details of the salient aspects of the occurrence as well as events collateral therewith; they have been confronted with cross-examination, devoid of direction and hopelessly inconsequential. Though the High Court discarded recovery of .30 caliber pistol (P-7), nonetheless, the injuries endured both by the deceased as well as the injured are consistent with the weapon, singularly used with awful lethality by the petitioner . Totality of circumstances does not admit any hypothesis other than petitioner's guilt. Non- assignment of effective shot to Imran Khan, acquitted co-accused in the face of multiple fire shots and available wounds, in retrospect, lends additional credence to the prosecution case, his acquittal notwithstanding. Benefit for absence of forensic report and a misdirected motive has already been extended to the petitioner despite shocking brutality inflicted by him upon the deceased, still a teenager , besides targe ting Sajid Mehmood PW who unsuspectingly intervened to rescue the deceased in good faith. Scales are in balance. Petition fails; leave declined."
The judgments cited by the learned counsel for the appellant is distinguishable. Each case has its own peculiar facts and circumstances.
For what has been stated above the appe llant has failed to make out a case in his favour . Therefore, we uphold the conviction and sentence awarded to the appellant by the trial court vide impugned judgment. The appeal being devoid of merit is hereby dismissed.