CRIMINAL PETITION NO. 241-L OF 2018 SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Petitioner along with three co-accused was tried by the learned Sessions Judge, Khushab pursuant to a case registered vide FIR No. 64 dated 18.06.2010 under sections 302/34, P.P.C. at Police Station Naushera, District Khushab far committing murder of Aamer Riaz, nephew of the complainant. The learned Trial Court vide its judgment dated 13.01.2012 white acquitting two co-accused, convicted the petitioner under section 302(b), P.P.C. and sentenced him to imprisonment for life. He was also directed to pay compensation amounting to Rs.300,000/- to the legal heirs of the deceased or in default whereof to further undergo SI for six months. The co-accused Muhammad Nawaz was convicted under section 337-F(ii), P.P.C. and was sentenced to two years' RI. He was also directed to pay daman amounting to Rs.10,000/- to the injured. Benefit of section 382-B, Cr.P.C. was also extended to the petitioner and the co-accused. In appeal the learned High Court maintained the conviction and sentence of the petitioner under section 302(b), P.P.C. The amount of compensation and the sentence in default whereof was also maintained. However, the learned High Court acquitted co-accused Muhammad Nawaz. Being aggrieved by the impugned judgment, the petitioner filed Criminal Petition No. 241-L/2018 whereas the complainant has filed Criminal Petition No. 385-L/2018 against the acquittal of the co-accused Muhammad Nawaz and seeking enhancement of the sentence awarded to the petitioner.
2. The prosecution story as given in the impugned judgment reads as under:- "2. Briefly the facts of the case as per FIR lodged by Muhammad bay/complainant (PW-8) are that he served as security guard in National Bank, Jouharabad and he was resident of Shakkar Kot; on the fateful day i.e. 18.06.2010 at 2.00 p.m., he after leaving from bank reached at Mouza Sarhal to see cricket match, where a tournament was going on. The complainant, Aamir Riaz his nephew, Faisal Ijaz his son and one Muhammad Asif, residents of village Shakar Kot, were already present in the village to watch the match. Before starting match the complainant party went to Jamia Masjid Sarhal to perform Juma prayer and after saying Juma prayer at about 2.45 p.m. when they reached at the gate of the Mosuqe, Aamir Riaz his nephew after wearing his shoes had gone few paces ahead of them; Faisal Ijaz and Muhammad Asif, after wearing their shoes also reached at the gate of Mosque. Suddenly they saw the accused persons namely Qasim Shahzad "armed with churri; Haroon Shahzad armed with knife, lmran and Muhammad Nawaz empty handed, while raising lalkara came near Aamir Riaz; Imran accused said to Aamir Riaz that he would not live alive and caught hold of Aamir Riaz from behind and Qasim Shahzad inflicted churri blow to Aamir Raiz at left side of his abdomen; second blow of knife caused by Haroon Shahzad landed in front of his chest; Muhammad Nawaz gave a brick blow to Aamir, which caused injury in the inner side of both toes of his feet. The complainant along with Faisal Ijaz and Muhammad Asif witnessed the occurrence and in order to rescue Aamir Riaz they rushed towards accused but on seeing them the accused fled away from the scene of occurrence towards village Ahadi. After receiving injuries Aamir Raiz fell on the ground; they took him to the Civil Hospital, Noushera on a private vehicle, where Aamir Riaz succumbed to the injuries.
3. Muhammad Ijaz/complainant also disclosed in the FIR that one day prior to occurrence i.e. on 17.06.2010 there was a cricket thatch in the village Sarhal between the team of Aamir Riaz and Qasim Shahzad in which some hot words were exchanged between both the teams, thus, for the same reason the accused, with consultation and planning has committed the murder of Aamir Riaz."
3. After completion of investigation, report under section 173, Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as eleven witnesses. In his statement recorded under section 342, Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations levelled against him. However, he neither appeared in his own defence under section 340(2), Cr.P.C. nor produced any evidence in his defence.
4. Learned counsel for the petitioner/convict contended that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the prosecution case is based upon whims and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so.
Contends that the learned Trial Court had disbelieved the testimony of Muhammad Ejaz, complainant (PW-8), as such, the conviction of the petitioner based on the solitary statement of Faisal Ejaz (PW-9) is not sustainable in the eyes of law. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove motive as alleged. which causes serious dent in the prosecution case. Contends that the recovery of weapon of offence in absence of report of FSL is inconsequential. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught.
5. On the other hand, learned Law Officer contended that to sustain conviction of an accused on a capital charge, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the petitioner does not deserve any leniency by this Court.
6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance.
Admittedly. the occurrence has taken place at 02.45 p.m. whereas the matter was reported to the police at 04:10 p.m. on the same day while the inter se distance between the place of occurrence and the Police Station was 4-1/2 kilometer. This aspect of the case clearly reflects that the matter was reported to Police without any inordinate delay. As the occurrence has taken place in the broad daylight and the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case had been furnished by Muhammad Ejaz, complainant (PW-8) and Faisal Ejaz (PW-9). Although; the learned Trial Court disbelieved the testimony of complainant Muhammad Ejaz (PW-8) but this would be of no help to the petitioner. As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence. It is not that who is giving evidence and making statement. What is relevant is what statement has been given and it is not the person but the statement of that 13 person which is to be seen and adjudged. In Niaz-ud-Din v. The State (2011 SCMR 725). it was held that conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence and not the quantity which matters. The same was the view of this Court in Asim v. The State (2005 -SCMR 417), Lal Khan v. The State (2006 SCMR 1846) and Muhammad Sadiq v. The State (2022 SCMR 690). In this view of the matter, even if the testimony of Muhammad Ejaz is discarded, the evidence of Faisal Ejaz (PW-9) is sufficient to sustain. conviction of the petitioner. However, the learned High Court has believed the testimony of the complainant and in doing so has given valid reasons in paragraph 12 of the impugned judgment. On this aspect of the case, learned counsel for the petitioner could not convince us to come to a different view than what has been arrived at by the learned High Court. Both the prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the petitioner or adverse to the prosecution could be produced on record. They remained consistent on each and every material point in as much as they made deposition exactly according to the circumstances happened in this case, therefore. it can safely be concluded that the ocular account furnished by these prosecution witnesses is reliable. straightforward and confidence inspiring. These PWs have reasonably explained their presence at the place of occurrence. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. As far as the question that the witnesses of the ocular account arc related to the deceased, therefore, their testimonies cannot be believed to sustain conviction of the petitioner/convict is concerned, it is by now a well established principle of law that mere relationship, of the prosecution E witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the petitioner could not point out any reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission 'or discre pancy goes so the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. Learned counsel had argued that in-fact the complainant party was aggressor and had come at the Masjid to take revenge of the quarrel, which had taken place in the cricket match. However, on our specific query, he could not show us any evidence in support of his argument. Even otherwise, this stance of the learned counsel proves the motive part of the prosecution story, according to which, hot words between the petitioner and the deceased during the cricket match became the reason of the present occurrence. So far as the recovery of weapon of offence i.e. churri is concerned, both the learned courts below have rightly disbelieved the same by holding that (i) no independent witness was associated during the recovery proceedings, and (ii) the blood stained churri was not sent to the office of Forensic Science Laboratory. Keeping in view the fact that recovery is disbelieved and inconsequential, the learned courts below have rightly awarded penalty of imprisonment for life to the petitioner. No further leniency can be shown to the petitioner.
7. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused.
Criminal Petition No. 385-L of 2018
8. No- one has entered appearance on behalf of the petitioner/ complainant to prosecute this matter. However, we have gone through the merits of the case and found that the learned High Court while maintaining the penalty of imprisonment for life awarded to the petitioner/convict Qasim Shahzad and while acquitting co-accused Muhammad Nawaz has given cogent reasons, which are neither arbitrary nor perverse or fanciful.- The learned High Court has passed a well reasoned judgment, which is based upon the weightage of the evidence led and the same is unexceptionable. Even otherwise, this petition is barred by 35 days for which no plausible explanation has been given in Criminal Miscellaneous Application No. 135-L of 2018. Consequently, this petition having no merit and being time-barred is dismissed and leave to appeal is refused.