ABDULLAH BALOCH, J. This judgment disposes of Criminal Appeal No. (S) 53 of 2023 filed by appellants Nadir, Naseeban sons of Alam and Ghulam Mir son of Muhim Khan, against the judgment dated 11th April 2023 (hereinafter referred as, "the impugned Judgment") passed by the learned District and Sessions Judge/Judge Model Criminal Trial Court Dera Bugti at Sui, whereby the appellants were convicted under Section 302(b) P.P.C. and sentenced to suffer life imprisonment each with fine of Rs.100,000/- (Rupees one lac) each as compensation to the legal. heirs of deceased in terms of Section 544-A Cr.P.C. and in default thereof to further suffer one (01) year each; they were also convicted under Section 147, P.P.C. and sentenced to suffer R.I. for six (06) months each and to pay fine of Rs.5000/- (rupees five thousand) each and in default thereof to further suffer one month S.I.; the appellants were further convicted under Section 148, P.P.C. and sentenced to suffer six (06) months R.I. each with fine of Rs. 5000/- and in default thereof to further suffer one month S.I. each, with the benefit of Section 382-B, Cr.P.C.
2. Facts of the prosecution case are that on 16th March 2022, the complainant Khunari lodged FIR No,10/2022 at Levies Thana Sui, Dera Bugti, under Sections 302, 147, 148, 149, P.P.C., with the allegations that he resides at Mouza Lashkrani and is an employee in Education Department', while his brother Sohbat Khan was the employee of Levies Force. On the day of occurrence, at about 07.30 a.m. he along with his brother Sohbat Khan boarded in Rickshaw to proceed towards their duties, while two other persons namely Farooq Ahmed and Gazo Khan were also seated in the said Rickshaw, when they reached at Mouza Wato; the appellants along with absconding accused Adam with two unknown persons duly armed with Kalashnikovs were already present there, having two motorcycles i.e. CD-70 and 125. The absconding accused Adam intercepted the rickshaw and the rickshaw driver namely Nakeefo stopped the rickshaw. In the meanwhile, all the accused persons asked them to alight from rickshaw and the appellants along with absconding separated his brother Sohbat Khan, who was in Levie's uniform, while both unknown co-accused persons separated the complainant, where after the appellants and absconding accused started firing upon his brother and committed his murder, while after committing the crime they proceeded towards eastern side on their motorcycles.
3. In pursuance of above FIR, the appellants were arrested, who were subjected to investigation and on completion thereof, they were challaned in the trial Court. While after initiating proceedings under Sections 87 and 88 Cr.P.C. the accused Adam was declared as proclaimed offender.
4. At the trial, the trial Court indicted the charge to appellants, who refuted the same, where after the prosecution in order to establish the charge has produced the evidence of seven witnesses, where after the appellants were examined under Section 342, Cr.P.C. The appellants neither recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any evidence in their defence. On conclusion of trial, the appellants were convicted and sentenced as mentioned above in Para No. 1. Whereafter they filed the instant appeal.
5. Learned counsel for appellants stated that the impugned judgment is result of misreading and mis-appreciation of evidence available on record; that the prosecution evidence is full of discrepancies, dishonest improvements and false accusation, but the same has wrongly been made a basis for awarding conviction and sentence to the appellants; that the FIR has been lodged after considerable delay of about seven hours and that too without any plausible explanation; that no recovery of crime weapon was effected from the appellants; that the prosecution has only produced interested witnesses, thus the case of prosecution is lacking independent corroboration; that the prosecution has miserably failed to prove the charge against the appellants.
6. Learned State Counsel assisted by the learned counsel for complainant while supporting the impugned judgement stated that sufficient incriminating evidence is available on record to connect the appellants with the commission of offence; that t the appellants are nominated in the FIR and the delay so occasioned in lodging the FIR has been explained by the complainant; that the evidence on record has rightly been appreciated by trial Court while awarding conviction to the appellants.
7. Heard the learned counsel for parties and perused the available record. The prosecution in order to establish the charge has produced medical, direct and circumstantial evidence. It would be appropriate to first discuss the medical evidence. Perusal of record reveals that the unnatural death of deceased Sohbat Khan is not disputed. The defence has not disputed the unnatural death of deceased, but pleaded their false implication. PW-5 Dr. Bakhsh Ali, Chief Medical Officer, Public Welfare Hospital Sui, examined the deceased and confirmed that the deceased had received multiple bullet injuries on his person and further opined the cause of death due to destruction of major vessels and vital organs, internal and external hemorrhage. PW-5 issued medical certificate Ex.P/5-A, which confirms the unnatural death of deceased due to fire arms injuries.
8. Diverting to direct evidence, suffice to observe here that the IA complainant appeared as PW-1, who reiterated the contents of FIR and brought on record that he alongwith his deceased brother Sohbat Khan were going to their offices in a Rickshaw, while PW-2 Farooq Ahmed and PW-3 -Gazo Khan, Levies Sepoy were also seated in the said Rickshaw towards their duties. The complainant mentioned the name of Nakeefo, who was the Rickshaw driver and being an independent witness, the prosecution produced him in the Court as PW-4. According to PW-1 when they reached at Mouza\Vato, the appellants alongwith absconding accused Adam and two unknown persons duly armed with Kalashnikovs, intercepted the Rickshaw, alighted the deceased, complainant and PW-2 and PW-3, separated the deceased and started firing upon him with fire arms, due to which he sustained injuries and died at the spot, while after committing the crime, they escaped on their motorcycles. The PW-1 identified the appellants in the Court as culprits, who with their common intention committed the murder of deceased Sohbat Khan with fire arms.
9. The statement of PW-1 has fully been corroborated by PW-2 Farooq Ahmed, PW-3 Gazo Khan, Levies Sepoy and PW-4 Nakeefo, Rickshaw Driver. All the three witnesses stated the same story as uttered by the complainant. All the three PWs recorded their statements in line with each other by mentioning all the details of occurrence and justified the presence of each other at the relevant time. PW-1 to PW-3 being officials/employees were proceeding to their duties in the Rickshaw of PW4, thus the presence of all the four witnesses at the place of occurrence was natural. All the three witnesses confirmed that on the morning of occurrence, they were travelling in the same Rickshaw, when their way was intercepted by the appellants alongwith absconding and two unknown accused persons, alighting the deceased and witnesses from Rickshaw separating the deceased and committing his murder by means of fire arms. The witnesses are the residents of same vicinity and identify each other with their names and cast and not only the said witnesses named the appellants in their statements recorded under Section 161 Cr.P.C. during investigation, but also they identified the appellants in the trial Court as the assailants of deceased Sohbat Khan.
The brutal murder of Sohbat Khan was committed in presence of PWs by the appellants, who being residents of same area and knew each other prior to commission of crime, thus there are no chances of mistaken identity of the accused by the PWs, when more particularly the occurrence had taken place in an open area under the sun light. The appellants have also failed to establish their false implication due to previous enmity or personal grudge. All the above four witnesses correctly stated the date, time, place of occurrence and the manner in which the accused were present at the site and caused the murder of deceased by means of fire arms. All the PWs were cross examined at sufficient length, but nothing advantageous or beneficial has come on record in favour of the defence. The evidence of PWs appears to be trust worthy, reliable, confidence inspiring and free from any prejudice or mala fides. There is no reason to disbelieve or discard the statement of four eye witnesses and in our view without looking for any other circumstantial evidence, the statements of four direct witnesses are enough to establish the charge against the appellants.
10. Though the defense has taken specific plea of false implication of appellants through interested witnesses, but in our view in a heinous crime the evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration rather the related witnesses some times, 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. The testimonies of PWs cannot be disbelieved solely on the ground that they are in relation with the deceased or complainant rather the Court has to see the truthfulness and credibility of such witnesses. Even otherwise, though the PW-2 and PW-3 admitted that they are the relatives of complainant party, but their close relation with each other has not been established, besides the most important and independent witness of the prosecution is PW-4, who being the Rickshaw driver had absolutely no relation at all with the complainant party and being the independent witness he fully corroborated the statements of PW-1 to PW-3 and the defence has failed to bring any or ulterior motives on the part of PW-4 with regard to their false implication, thus the objection of defence is not helpful to the case of prosecution.
Reliance in this regard is placed on the case of Ijaz Ahmed v. The State, 2009 SCMR 99, the relevant portion reads as under: "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 his 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 Rlaz 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 SCAIR 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 Rajasthan 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 out rightly 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. Bheemapa 1993 Cr.L.J 2609 (SC) and (iv) State of UP. 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."
Similar view has also been taken by the Hon'ble Supreme Court of Pakistan in the case of Latif v.
State, 2008 SCMR 1106, whereby it has been held as under: "Testimony of both the aforementioned witnesses cannot be doubted because they being close relatives of the deceased would not like to let go the real offender or substitute him with the appellant just to take revenge. Their presence at the place of occurrence was also natural. The evidence of both the eye-witnesses is corroborated by the medical evidence in all material particulars."
11. Now diverting to the contention of the learned counsel for appellants that the FIR has been lodged after delay of seven hours, suffice to observe here that the occurrence had taken place in a village of a remote area, certainly the arrival of Ambulance to the place of occurrence, shifting of deceased to hospital, his medical examination by doctor, arrival of Levies at the place of occurrence and at hospital, reducing into writing of fard-e-bayan through petition writer and more particularly due to panic faced by the complainant are the reasons that would certainly take few hours ad only delay of few hours would not diminish the entire direct, medical and circumstantial evidence. Even otherwise, sufficient incriminatory evidence is available on record and mere delay in lodging the FIR of few hours would not render the entire case of prosecution as doubtful, hence the objection of the learned counsel to such extent is without substance. Besides, the trial Court justifiably discussed all the facts and circumstances of the case, which resulted into delay in lodging the FIR.
12. As far as, non-recovery of crime weapon i.e. Kalashnikovs, are concerned, suffice to observe here that the occurrence had taken place on 16th March 2022 and after commission of the crime, the appellants absconded and after rejection of their bail before arrest application by the learned trial. Court, the appellants were arrested on 7th September 2022, thus they had sufficient time of six months to dispose of or conceal the crime weapon. Thus the stand so taken in this behalf by the counsel for the appellants is without any substance. Since, the prosecution has produced direct evidence of four witnesses, which is confidence inspiring, thus mere non-recovery of crime weapon, which is considered to be a circumstantial evidence, is not enough to discard the entire direct evidence. Reliance in this regard is placed on the case of Asmat Ullah and others v. The State 2023 YLR Note 8 (Balochistan). The relevant portion is reproduced herein below: "12. As far recovery of crime weapon is concerned. The recovery of crime weapon is not considered as mandatory requirement of law. Same being circumstantial or corroborative piece of evidence only tends corroboration to the other pieces of evidence. The ocular testimony cannot be disbelieved merely on non recovery of crime weapon."
13. On reappraisal of the evidence available on record it is concluded that the prosecution has successfully proved the charge against the appellants beyond any shadow of reasonable doubt; that all the witnesses remained firm in their deposition; that they fully supported the prosecution version and the defence has failed to cause any dent in the same; that the trial Court after proper appraisal of evidence available on record has rightly awarded conviction and sentence to the appellants; that the appellants have failed to point out any mala tide on the part of the complainant party for their implication; that the appellants have failed to point out any material contradiction and discrepancy which could benefit the defence version; that there is no error of law, misreading or non-reading of evidence in judgment passed by the trial Court calling for interference by this Court. Thus, the appeal is dismissed to the extent of accused Nadir and Naseeban Sons of Alam Khan.
14. So far as, the case of Ghulam Mir son of Muhim Khan is concerned, suffice to observe here that during pendency of appeal, complainant party effected compromise with him outside the Court and in this behalf the complainant filed an application under Section 345, Cr.P.C, for compromise to the extent of Ghulam Mir, thus the compromise documents twice were sent to the learned trial Court for verification and recording the statements of the legal heirs of the deceased and to confirm as to whether the compromise effected between the parties is genuine or otherwise.
15. In compliance thereof, the court below sought list of legal heirs of deceased, which was accordingly submitted, according to which the deceased has left behind Essa Khan (father), Gul Bakht Bibi (wife/widow), Gulab Khali (son) and brothers namely Kakar, Kaleri Khan, Paneri Khani, Kunari and Malow Khan. The trial Court summoned the legal heirs and according recorded their statements and submitted his report along with statements of legal heirs before this Court, which reflects that the legal heirs of deceased have entered into compromise with the appellant voluntarily and without any coercion and that they have pardoned the appellant in the name of Almighty Allah without any consideration whatsoever and do not want to proceed further against the appellant. The trial Court in its report has also confirmed that the compromise arrived at between the parties is genuine. The compromise documents including the Proforma prescribed by the Hon'ble Supreme Court in original have been thumb impressed by the legal heirs, signed as well as thumb impressed by the appellant and have also been attested by the Superintendent Central Jail Mach. The compromise deed is supported by the affidavits of the legal heirs of the deceased. The counsel appearing on behalf of complainant has also confirmed the contents of compromise deed.
16. In the case in hand, all the legal heirs of deceased are major, excluding Gul Khan, who is minor.
Besides, the offence under Section 302(b), P.P.C. is compoundable and the parties have entered into compromise, as such, the application for compromise is accepted subject to payment of Diyat amount to minor Gulab Khan as per prevailing rate in pursuance of Notification of Government of Pakistan Finance Division (Internal Finance Wing) of the fiscal year 2022. While giving effect to the compromise, the impugned judgment dated 11th April 2023 passed by the learned District and Sessions Judge/Judge Model Criminal Trial Court Dera Bugti at Sui is set aside only to the extent of appellant Ghulam Mir Son of Muhim Khan, who is acquitted of the charge under section 302(b), P.P.C. on the basis of compromise under section 345 (6) Cr.P.C. The appellant Ghulam Mir son of Muhim Khan being in custody is ordered to be released subject to payment of Diyat amount to minor Gulab Khan as per his proportionate shari share.
Copy, of this judgment be sent to learned trial Court with the directions to ensure the deposit/payment of Diyat amount to the minor Gulab Khan and once the Diyat amount is realized, the appellant be released after observing all legal formalities.