' JAVED IQBAL, J.---This is an appeal preferred under section 410, Cr.P.C. Against the judgment datedi 18-4-1994 whereby the learned Additional Sessions Judge Usta Muhammad, in Sessions Case No,50/90 convicted appellant under section 302, P.P.C. And sentenced him to imprisonment, for life and fine of Rs,4 lacs or in default to undergo four years' R.I.
2. Briefly stated the facts of the case are that on 31-8-1990 a report was got lodged at Police Station Usta Muhammad- by complainant Habibullah alleging therein that his nephew Allah Wasaya, wife of Allah Wasaya namely Mst. Sabai and mother-in-law Of Allah Wasaya namely Mst. Janat along with him came to Usta Muhammad for treatment of son of Allah Wasaya and purchase of household goods. It is further alleged therein that Allah Wasaya proceeded for purchase of medicine as per prescription of Doctor from Yasin Medical Store, when Mst. Sibai, Mst. Janat and he was standing outside and meanwhile Dur Muhammad appeared on the scene and fired two shots at Allah Wasaya with Carbine Rifle, who resultantly received injuries at his neck and chest and succumbed to the same then and there and in consequence whereof a case under section 302, P.P.C. Was got registered and after completion of investigation challan was submitted, trial concluded and conviction awarded as mentioned herein above, hence this appeal.
3. Charge was framed on 25-1-1993 by the learned Additional Sessions Judge, Usta Muhammad under section 302, P.P.C. To which the accused pleaded not guilty and claimed trial.
4. Prosecution in support of accusation produced Habibullah (P.W.1), who is stated to, be an eye- witness and complainant in the case, Mst. Sabai (P.W.2) who is also an eye-witness, Niaz Ali (P.W.3) who is witness of recovery of empties (Exh.P/3-B), recovery of blood-stained earth (Exh.P/3-A).
Liaquat Ali (P.W.4) who is also witness of recovery of the crime weapon (Exh.P/4-A). Muhammad Saddiq (P.W.5) is also recovery witness of blood-stained clothes (Exh.P/5-A). Shaukat Ali (P.W.6) is recovery witness of pellet (Exh.P/6-A). Dr. Shah Bakhsh (P.W.7) is Medical Officer, Civil Hospital, Usta Muhammad who conducted the post-mortem of Allah Wasaya and issued Medical Certificate to that effect (Exh.P/7-A). Muhammad Shafique (P.W.8) is I.O. The statement of accused was recorded under section 342, Cr.P.C. By whom the allegation was denied and in order to substantiate the plea of innocence he led defence and produced Ghulam Haider (D.W.1) and Muhammad Ramzan (D.W.2). Ghulam Haider (D.W.1) deposed that on the fateful day he was doing some work at Goth Dad Pur, when a Taxi Driver arrived and informed Habibullah about the incident, who alongwith him got lodged report about the incident and used the same Taxi. Muhammad Ramzan (D.W.2) deposed that on the day of incident Niaz All (P.W.3) was arrived as his guest and information of the incident received by them at Khan Pur Bridge through passenger of a Bus.
5. We have carefully examined the said main defence plea that a concocted case was got registered and accused wrote therein at behest of the complainant party. It is to be noted that the above mentioned defence version could not render any substantiate assistance to the above mentioned plea, hence it has rightly been discarded being fabricated and afterthought.
6. It is mainly contended by Mr. Muhammad Aslam Chishti, Advocate, on behalf of convict/appellant that the learned Additional Sessions Judge, Usta Muhammad, could not have tried the case without having a proper reference from the learned Sessions Judge, and it was beyond his jurisdiction to receive the challan directly from Sub-Divisional Magistrate, hence the entire proceedings was unlawful and liable to be quashed. It is next contended that Habibullah (P.W.1) and Mst. Sabai (P.W.2) were not present at the place of occurrence and in support of the said contention, he argued that it was admitted by Habibullah (P.W.1) that there was no other purpose for their visiting Usta Muhammad, but treatment of deceased's son and it was not the case of prosecution that the patient was suffering seriously and brought on stretcher. It is next contended that no independent witness has been examined in spite of the fact that occurrence took place within Bazar and the area was populated and there were also shops around, but no witness could be associated from the vicinity. It is also contended that the statement of Habibullah (P.W.1) is indicative of the fact that necessary initial investigation was carried out prior to the registration of the case which caused serious doubt on the prosecution case and objectionable conduct of the police and as such the value of the F.I.R. Has been diminished. It is further argued that keeping in view the alleged Siakari the possibility of false involvement of the convict/appellant on the basis of enmity could not be ignored, but this aspect of the matter was not considered by the learned trial Court. Mr. Muhammad Aslam Chishti, Advocate, has also urged emphatically that the convict/appellant was arrested on 31-8-1992 and recovery of crime weapon was effected on 10-9-1992, but no independent witness was associated which makes the recovery highly doubtful and moreso, that crime weapon was sent to the expert on 13-4-1993 after 7 months and no explanation whatsoever has been given for this inordinate delay, hence the report of expert is not worthy of reliance. He also argued that there is a contradiction in between ocular evidence and that of Medical evidence.
7. Chaudhary Ejaz Yousaf, learned Additional Advocate-General, has supported the impugned judgment and contended that prosecution has proved its case beyond the shadow of doubt. He also urged emphatically that sufficient incriminating material was available to establish the case and referred the ocular evidence, recovery of crime weapon and motive. He further argued that the recovery cannot be challenged on the ground that no private witness could be associated for the simple reason that Police Officials were equally trustworthy and their testimony could be relied. He also urged emphatically that the defence version is afterthought and did not render any assistance to the defence version. He also mentioned that no mala fide whatsoever was alleged against the Police as such substitution of the accused with that of real culprit is beyond imagination as there was no enmity in between the Police and that of the convict/appellant for doing so.
8. We have carefully examined the respective contentions as adduced on behalf of the convict/appellant and for State in the light of relevant provisions of law, evidence which has come on record and the defence version. We have minutely gone through the statement of all the prosecution witnesses. We have thoroughly examined the deposition of Habibullah (P.W.1), who deposed that about 11 months back he along with Allah Wasaya, Mst. Sabai wife of Allah Wasaya, Mst. Janat mother-in-law and Sharifuddin son of Allah Wasaya visited Usta Muhammad for treatment. He deposed further that Allah Wasaya proceeded to Medical Store for purchase of medicine as per prescription of the Doctor, when accused Dur Muhammad fired two shots from his country-made carbine which hit him at his back and chest and Allah Wasaya died at the spot. He further deposed that since he was empty-handed, therefore, he could not help deceased Allah Wasaya, who was murdered due to allegation of Siakari with Mst. Amiran, who is cousin of the accused. He also deposed that the matter was registered and F.I.R. Got lodged, which he produced as Exh. P/1-A and identified his thumb-impression upon it. He was subjected to an exhaustive cross-examination, but nothing beneficial could be extracted from defence point of view. The cross-examination mainly revolved about the distance in-between the Doctor's Clinic and Medical Store and that of Gandakha Bus Stand. He, however, admitted regarding the availability of other shops and hotels around Medical Store. He also clarified in an unequivocal term that accused fired at Allah Wasaya from Eastern side at the deceased by putting his Carbine pistol over his neck, resultantly after first fire the deceased fell down and second fire was made by standing upon the deceased. He also admitted that the incident was witnessed by a few other persons. He also admitted that he went to Police Station and brought the Police at place of occurrence within 20 minutes. He further admitted that he went to Hospital along with dead body, but Mst. Janat and Mst. Sabai did not accompany him. He also admitted that Police got his thumb-impression when he visited the Police Station second time. He refuted the suggestion that he was informed about the incident while he was in his village. It is interesting to note that no suggestion whatsoever was made that at the time of occurrence he was at Dad Pur and the information of murder was communicated to him by some Taxi Driver. No question was put up that he also used the taxi and came to the place of occurrence. His testimony could not be shattered during cross-examination in spite of various searching questions. Mst. Sabai (P.W.2) has corroborated the statement of Habibullah (P.W.1) on all the material particulars and deposed with clarity that when Allah Wasaya reached Medical Store a fire was made upon Allah Wasaya and accused Dur Muhammad made another fire from a short distance and made his escape good. She also deposed that Habibullah went for lodging report in Police Station. She was also subjected to cross-examination, but she confirmed to the test of cross-examination. She also corroborated the version of Habibullah, (P.W.1) regarding the mode of firing, distance and the manner in which the accused behaved. She also admitted that she had not accompanied the dead body to Hospital. She also denied the suggestion categorically that at the time of occurrence she was at her village and further refuted that she got recorded his statement at the behest of Habibullah (P.W.1) Niaz All (P.W.3) has deposed that he received the information of the incident while he was at his home and in response whereof he reached at the place of occurrence and found the dead body of Allah Wasaya. He further deposed that Mst. Janat and Mst. Sabai were sitting near the dead body. In his presence Police secured blood-stained earth vide recovery memo. Exh. P/2-A and made it into a sealed parcel (A: P/1). Police also recovered two empties from the place of occurrence vide recovery memo. (Exh.P/3-B) and he identified the same as Art. P/4 and Art. P/5. Inventory of Wardat was also prepared vide memo. Exh. P/3-A and he also identified his signature upon it. He further deposed that Mst. Janat and Mst. Sabai at the place of occurrence told him that accused Dur Muhammad has murdered Allah Wasaya. He was also subjected to a lengthy cross-examination, but nothing beneficial could be extracted. He mentioned categorically the distance from where the empty cartridges were collected. He admitted that Allah Wasaya was his close relative. He also denied the suggestion that Mst. Sabai and Mst. Janat were not present at the place of occurrence. He also denied the suggestion that empty cartridges was not recovered by the Police from the place of occurrence. Liaquat Ali (P.W.4) has deposed that during investigation accused Dur Muhammad showed his willingness to get the crime weapon recovered and at his pointation from Agricultural Farm from bushes, one carbine was got recovered and taken into possession vide Exh.P/4-A in his presence and that of Bashir Ahmed H.C. He identified the crime weapon as Art. P/7. He was also subjected to cross-examination but his testimony remained unshattered. No mala fide or enmity whatsoever was alleged. He also refuted the suggestion that the accused was implicated falsely.
Muhammad Saddiq (P.W.5) is formal witness of recovery of blood-stained clothes of deceased taken into possession vide memo. Exh. P/5- A from Civil Hospital. Shaukat Ali (P.W.6) is also a formal witness, who received sealed bottle having a pallet vide recovery Memo. Exh. P/6-A. He was not subjected to any cross-examination. Dr. Shah Bakhsh (P.W.7) has conducted the post-mortem of deceased with the following observation: "(1) Fire-arm wound of entrance on the chest centrally. Size 1/2" in diameter. Blackening present.
(2) Fire-arm wound of exit on the back of chest.
(3) Ten fire-arm wounds of entrance on the centre of chest. Size 1/4" in diameter.
(4) Fire-arm wound of exit on the back of chest.
(5) Fire-arm wound of entrance below the right ear size 1" in diameter. Blackening present.
(6) Fire-arm wound of exit through the temporal region. One pallet removed from the body, sealed and handed over to Police."
' Muhammad Shafique (P.W.8) is the Investigating Officer, by whom the investigation was conducted and challan of the case was prepared, which was filed by Jamil Asghar, S.H.O. To the Court for favour of trial. He was also subjected to cross-examination and he pointed out while answering one of the questions that there were marks of pallets on the chest, and neck of dead body. He also mentioned that wounds had three exits. He also mentioned that empties were not lying at one place. He also pointed out that dead body was lying exactly in front of Yasin Medical Store. He denied the suggestion that statement of prosecution witnesses were recorded in the evening at Police Station and they were not present at the place of occurrence. He denied the suggestion categorically that no pistol was got recovered at the pointation of accused.
9. We have carefully examined the depositions and cross-examination of each witness as discussed above. Admittedly they were subjected to a lengthy cross-examination, but nothing beneficial to the defence could be extracted from them. Their statements do not suffer from material contradiction, discrepancies, improvements, or dishonest omissions. No glaring contradiction fatal to the prosecution case could be pointed out by the learned defence counsel.
The minor discrepancies as observed by us, which are found here and there are but natural in the statement of truthful witnesses. In our view the ocular account is inconsonance with the probabilities fixed with other evidence and has inspired confidence of truth in our mind. There seems to be no reason to substitute the accused with that of real culprits which would not only be against human conduct, but does not appear to reason and logic. The evidence of Niaz Ali (P.W.3) appears to be materially fixed in the circumstances of the case and removes all the doubts that Mst. Sabai (P.W.2) was not present at the spot. No doubt that Niaz Ali (P.W.3) is cousin of the deceased, but it hardly matters as relationship itself is not sufficient to discard his testimony being an interested witness as contended. We may point out here that there is no rule of law that the statement of an interested witness cannot be taken into consideration without corroboration and uncorroborated version can be relied in context with other circumstances of a particular case. In this regard reference can be made to the following authorities:- ' PLD 1969 SC 488 ' PLD 1974 SC 37. PLD 1975 SC 277. 1985 SCM R 203.
10. It is pertinent to mention here that major portion of version went unchallenged even he was not asked as to whether he remained as guest of Muhammad Ramzan (D.W.2) and this omission in our view cannot be termed as "an inadvertent omission" besides it medical version also lends corroboration to the ocular account formed by Habibullah (P.W.1) and Mst. Sabai (P.W.2), who deposed the mode and distance of firing and the deposition of Dr. Shah Bakhsh (P.W.7) coupled with post-mortem report (Exh.P/7-A) which indicative of the fact that "Blackening" was present on the injuries found on the neck and below the right ear meaning thereby that firing was made from a short distance. The recovery of crime weapon from the bushes at the pointation of accused further lends support to the ocular account duly supported by medical evidence, as mentioned above. It is pertinent to note that Liaquat Ali (P.W.4) stood firm to the test of cross-examination and no mala fide or enmity was alleged except a half-hearted suggestion that he was deposing falsely at the behesi of the Investigating Officer, is not sufficient to cast doubt on his veracity. No doubt that private witnesses could not be associated but non-cooperation from the general public is now a judicially recognized fact and apart from it the official/Police witnesses who stood firm to the test of cross-examination and their version remains unshaken can be relied in a similar manner as that a witness from public. The deteriorated moral values, alarming law and order situation, time consuming legal formalities and lack of security must be kept in view while raising such an objection. The Ballistic Expert Report (Exh.P/8-E) cannot be ignored for the simple reason that the crime weapon was sent with delay specially when the Investigating Officer was never asked regarding the delay occurred and without having his explanation no adverse inference can be drawn, when there is no allegation regarding the substitution of the crimes weapon with mala fides. The pistol was found welted with the crime empties found from a spot which proves the guilt of the appellant to the hilt. Mere delay in despatching such items cannot be made a ground for rejecting their value and worth. In this regard we are fortified by the dictum laid down in 1987 SCM R 960.
' From the above mentioned discussion we have reached the inescapable conclusion that appellant was responsible for committing murder of the deceased.
' However, adverting now to the quantum of sentence to be awarded, we have to see the cumulative effect of the evidence, the motive to commit murder and entire circumstances in this regard.
' In the first instance it may be noted that a revision petition has been filed for enhancement of sentence from imprisonment for life to death. On the other hand it has come on record that the motive to commit murder was Siahkari. It is mentioned even in the F.I.R. That allegedly illicit relations of Mst. Amiran was cause of murder and Mst. Amiran is the real cousin of the appellant.
Irrespective of the fact whether appellant specifically raised plea of provocation or not it has come on record that the motive was that the deceased had developed illicit relations with Mst. Amiran.
An attempt had been made for settling the issue according to Riwaj which, however, was thwarted therefore question of enhancement of sentence would not arise and revision petition is dismissed as such.
' As an alternate plea we have to see whether extenuating circumstances exist from the record or not. As stated hereinabove it is mentioned even in the F.I.R. That murder was as a result of Siahkari.
It may be noted that sometimes people commit brutal murders on false plea of Siahkari but as far as present case is concerned, no such circumstance had come on record that there was any motive other than Siahkari for commission of the offence. If that be so, then we cannot altogether ignore the extreme disgrace and disrespect which is brought by persons having illicit relations with womenfolk and it is but natural that a continued mental agony persist upon the family. Of course provocation in the circumstances is never sudden but it continues and lingers on as far as affected family is concerned. In the instant case the murder has been committed under such strains, therefore, we are inclined to reduce the sentence from imprisonment for life to 10 years' rigorous imprisonment. We further order that benefit of section 382-B, Cr.P.C. Shall also be given to the convict/appellant.
' Resultantly the conviction of the appellant is maintained but sentence is reduced from imprisonment for life and fine of Rs,4,00,000 (Rupees four lacs) to 10 years' rigorous imprisonment only.
' Accordingly Criminal Appeal and Criminal Revision are disposed.