' TASSADUQ HUSSAIN JILANI, J.--- By this judgment, we intend to dispose of Murder Reference No,1 of 1993, Criminal Appeal No,106 of 1992 and Criminal Appeal No,114/J of 1992.
2. Through the above referred appeal, the appellant Muhammad Iqbal son of Rasool Bakhsh has challenged the judgment, dated 30-11-1992 passed by Mr. Riazul Hassan Alvi, learned Additional Sessions Judge, Bahawalpur whereby he convicted the appellant under section 302, P.P.C. And sentenced him to death for the murder of Muhammad Afzal.
3. The prosecution story as narrated by Muhammad Bilal (P.W.1) who lodged the F.I.R. Exh.PA. Is that about 12/13 years prior to the date of occurrence Mst. Razia was married with Muhammad Iqbal appellant and sister of Muhammad Iqbal appellant Mst. Shahida was married to Muhammad Abbas a brother of the complainant. Those were marriages of Watta Satta. The relations between Mst. Razia and Muhammad Iqbal got strained but on account of interference by the respectables, the matter was patched up. Mst. Shahida sister of Muhammad Iqbal had a quarrel with complainant's father and she left them and went to the house of her parents. On 3-4-1992 Muhammad lqbal appellant gave a beating to his wife Mst. Razia and turned her out from the house. She started living with her father. On the night between 10/11-4-1992, the complainant alongwith Muhammad Sajjad his brother, Muhammad Afzal (deceased) his father and Muhammad Ashiq his uncle were sitting in the room to look after their ailing mother. Muhammad Iqbal appellant opened the main gate, asked complainant's father Muhammad. Afzal to come out of the room as he wanted to meet him. Muhammad Afzal replied that he could talk in the room and there was no need to go out. The appellant got flared up and said to the complainant's father, "You have turned my sister out of the house after giving her beating and you also did not permit my wife to stay at my home. You have destroyed me and I want to teach you a lesson."
' Having said this, he took out the pistol from his Shalwar and fired at the father of the complainant which hit him on the chest who fell down. The complainant alongwith others made an abortive attempt to apprehend the appellant but he ran away extending threats to them that if any body tried to apprehend him, will meet the same fate.
4. The F.I.R. Exh.P.A. Was recorded by (P.W.9) on the statement of complainant and thereafter he proceeded to the police station. He recorded the statements of P.Ws. Under section 161, Cr.P.C.
Prepared inquest report Exh.P.F./2, injury statement of Muhammad Afzal deceased Exh.P.F./3 and site plan of the occurrence Exh.P.G. He also took into possession the pieces of cement vide Exh.P.C.
He also took into possession blood-stained Safa P.4, Gadda P5 and Pillow P.6 from the cot lying inside the room vide memo. Exh.P.E. Which was attested by Muhammad Ashraf P.W.4 and Ghulam Farid (P.W. Not produced). On 16-4-1992, he arrested Muhammad Iqbal appellant who while in police custody on 20-4-1992 led to the recovery of pistol P.1 and live cartridge P.2 which were taken into possession vide recovery memo. Exh.P.B. The report of the Ballistic Expert Exh.P.9 is to the effect that the crime empty was fired from the pistol Exh.P.1 recovered from the appellant. The report of the Serologist is Exh.P.M. And report of the Chemical Examiner is Exh.P.L. Both the reports are positive.
During the trial, besides the complainant Muhammad Bilal P.W.1, the prosecution produced P.W.2 Muhammad Ashiq who is brother of Muhammad Afzal deceased. He corroborated the statement of P.W.1. Rao Muhammad Islam appeared as P.W.3. He is also a witness of recovery of pistol .12 bore P.1 and live cartridge P.2. Muhammad Ashraf appeared as P.W.4. He is witness of securing bloodstained earth in pieces of cement from the floor of the room where Muhammad Afzal deceased was killed. He is also witness of taking into possession Safa P.4, Gadda P.5 and Pillow P.6 which were also blood-stained. Abid Hussain H.C. Appeared as P.W.S. He took sealed parcels containing blood-stained cement and crime empty and handed the same over to Muhammad Yar F.C. For delivering to the Office of Chemical Examiner, Lahore. Doctor Muhammad Anwar appeared as P.W.6 who conducted postmortem examination on the dead body of Muhammad Afzal deceased. Badarul-Islam, Draftsman appeared as P.W.7 to state that he prepared the site plan Exh.P.G. And Exh.P.G./1 on the direction of police and also on the pointation of P.Ws. Bashir Ahmad F.C. Appeared as P.W.B. He collected the last worn clothes of the deceased, shirt P.7, Lacha P.8 and handed over to the Investigating Officer who took the same into possession vide memo. Exh.P.H.
Saeed Ahmad, Inspector appeared as P.W.9. Muhammad Yar F.C. Appeared as P.W.10. He collected parcels of blood-stained pieces of cement and empty cartridge from Abid Hussain F.C. And delivered the same to the Office of Chemical Examiner at Lahore. Niaz Ali, F.C. Appeared as P.W.11.
He collected parcels of pistol P.1 alongwith live cartridge from Moharrir of the police station and delivered the same to Laboratory at Lahore on 26-4-1992.
5. Dr. Muhammad Anwar (P.W.6) who conducted post-mortem examination on the dead body of Muhammad Afzal deceased found the following injuries:- "There was 3 c.m. x 3 c.m. Lacerated inverted margin oval shaped wound on left side of exyphoid sternum 2 c.m. Over the lower two ribs.
' On dissection the wound goes obliquely damaging the lower part of heart, then crossed the right lung and fracture the posterior fifth and sixth rib on the right side of chest. The whole cavity of chest was full with clotted blood.
' Scalp, skull and vertebra, membrane, brain, spinal cord were healthy. Thorax.
' Left anterior lower ribs fractured and posterior right fifth and sixth ribs were fractured. Pleaura was ruptured. Larynx and tracheae were healthy. Right lung ruptured anterior posteriorly. Clotted blood was present. Left lung was leanthy. Paricardium and heart were ruptured. Heart was damaged from the lower part of the right and left ventricle. Blood vessels were healthy.
' Abdomen.
' Walls ruptured on the left side of xyphoid. All other were healthy except the ruptured diaphragm of Viuscles, bones and Joints.
' There was fracture of left anterior lower two ribs and fracture of the posterior right fifth and sixth ribs.
' Remarks by the Medical Officer.
' After doing through external and internal post-mortem examination, I am of the opinion that the cause of death was due to fire-arm injury to damage the heart, right lung was leading to bleeding shock and death. This injury was sufficient to cause death in ordinary course of life."
6. The accused when examined under section 342, Cr.P.C. Denied the prosecution story stating that as a matter of fact, his wife Mst. Razia had illicit relations with one Ibrar alias Gullu. He got a case registered against said Ibrar vide F.I.R. No,117/91 under sections 452, 354, P.P.C. At Police Station Sadar Bahawalpur. Mst. Razia also instituted a suit for dissolution of marriage against him. He further stated that on the fateful day, the afore-referred Ibrar might have gone to the house of deceased to see Mst. Razia. The deceased might have seen them in compromising position and having been caught red handed, Ibrar alias Gullu might have fired at the deceased in consequence of which he expired. He alleged that Mst. Razia saved her paramour by falsely implicating me.
7. Learned counsel for the appellant in support of this appeal, raised following pleas:--
(i) that the ocular testimony is not reliable as the presence of P.W.1 Muhammad Bilal and P.W.2 Muhammad Ashiq is doubtful at that late hour of the night. According to learned counsel, it is in evidence that P.W.1 sleeps in a separate room and P.W.2 has not explained the reason for visiting Muhammad Afzal deceased at that fateful time.
(ii) that the ocular testimony is belied by medical evidence inasmuch as there is no blackening around the wound although the firing was made from a very close distance.
(iii) that the investigation is dishonest as
(a) name of the accused is not mentioned on the site plan Exh.P.G./3.
(b) there has been overwriting over the name of the accused in Exh.P.C., Exh.P.D. And Exh.P.E.
(c) that Mst. Razia was an important witness but she was not made to join the investigation.
(d) that the Investigating Officer did not make inquiry as to what was the ailment of the mother of the complainant which had prompted Muhammad Ashiq P.W.2 and Muhammad Bilal P.W.1 to be there at the spot at the fateful time.
(iv) that the evidence of related and interested witnesses is to be taken with extreme caution and requires independent corroboration which is lacking in this case.
(v) that the witnesses have made improvement which has shaken their credibility.
8. Learned Assistant Advocate-General assisted by learned counsel for the complainant submits that the prosecution evidence consists of natural witnesses, that the F.I.R. Was lodged with promptitude, that the appellant was known to the P.Ws. And there was no question of false implication or mistaken identity. It is further submitted that the appellant is real nephew of Muhammad Afzal deceased and his son-in-law as well. It is repellant to common sense that the complainant would involve his brother-in-law in a case of murder.
9. We have heard learned counsel for the appellant, learned Assistant Advocate-General as well as learned counsel for the complainant and have also gone through the record.
10. The ocular account, in the instant case, is furnished by P.W.1 Muhammad Bilal and P.W.2 Muhammad Ashiq. Both these witnesses live in the same house in which Muhammad Afzal deceased lived. At page 31 of the paper book, P.W.1 during cross-examination stated:-- "Muhammad Ashiq is my maternal-uncle who also lives in the same house. The courtyard of our house is the same. We are having separate rooms."
' Similarly P.W.2 Muhammad Ashiq in his examination-in-chief has corroborated the statement of P.W.1 that he had gone to the room of Muhammad Afzal deceased to enquire about the health of Mst. Siraj Mai his wife. Thus, both these witnesses have explained the reason of their presence at the spot. Both these witnesses are consistent qua manner in which the appellant entered the house, shot the deceased and decamped from the spot. A Both these witnesses are also witnesses of the motive part of the prosecution story. Despite the lengthy cross-examination to which both these witnesses were subjected by the defence their credibility could not be shaken.
11. Merely because the eye-witnesses are related to the deceased woulti not discredit them in he facts and circumstances of this case. These witnesses are also related to the appellant P.W.1 is brother-in-law of the appellant (wife's brother) and P.W.2 Muhammad Ashiq is uncle of the appellant. In this close relationship, how would they falsely implicate the appellant. As a matter of fact, the relationship of P.W.1 and P.W.2 with Muhammad Afzal by itself would indicate that they would not let off the real culprit and implicate the appellant falsely. In a similar case reported in Zar Bahadar v. The State 1978 SCM R 136, the Honourable Supreme Court held:-- "----S. 302---Murder---Apreciation of evidence---Witnesses related to deceased---Would not normally allow real murderer to escape by implicating an innocent person---Evidence of such witnesses only to he scrutinized carefully and not to be rejected on that score---.
' Similarly in yet another judgment reported in Zia Ullah v. The State 1993 SCM R 155, the Honourable Supreme Court reiterated the afore-referred dictum and observed as follows:-- "----S. 302---Appreciation of evidence---F.I.R. Was promptly lodged wherein the role of the accused had been particularised and there was hardly any time for manipulation---Complainant could not let off the real culprit who murdered his father and substitute him by the accused, nor other eye-witnesses could choose to follow the same wake on account of vindictiveness---Both the trial Court and the High Court had properly scrutinised the ocular evidence which was corroborated by medical evidence---Evidence of eye-witnesses qua co-accused was not disbelieved but the possibility of their innocence could not be ruled out which had entitled them to the benefit of doubt. Conviction of accused was upheld in circumstances."
12. The ocular account stands corroborated by the medical evidence which is not seriously disputed and the evidence of recovery of weapon of offence which was witnessed by P.W.3 who admittedly is not related to the complainant. The report from the Forensic Science Laboratory further strengthens the prosecution case 'as it is to the effect that the empty was fired from the pistol P.1. Learned counsel for the appellant attempted to take benefit from non-production of Mst.
Razia Bibi as a witness in Court and submitted that she was an important witness and was withheld by the prosecution, causes doubt about the entire prosecution case. We are afraid, the defence could not take any advantage of this omission on the part of the Investigating Officer or the prosecution case. The prosecution is not bound to examine every witness of the occurrence and even some one is cited as a witness, it is not mandatory for the prosecution to produce it. This would also not reflect adversely on the prosecution case unless there are strong reasons to support the contention that if the said witness had been produced it would have supported the defence plea. Nothing has been suggested to that effect. It is admitted by the defence that the relations between the appellant and. Mst. Razia Bibi were strained and she was at the relevant time residing with her father. While dealing with this aspect of the prosecution case, the Honourable Supreme Court in Zia Ullah v. The State 1993 SCM R 155 at page 157 observed:-- ' 302---Evidence---Prosecution is not bound to examine a witness whom it considers as unnecessary or having been won over by the accused."
' In the light of the foregoing analysis of the prosecution case which is based on the ocular testimony, the medical evidence and the evidence of recovery, the charge against the accused stands proved beyond a shadow of doubt. However, coming to the question of sentence. We find that the appellant was under a sustained provocation on account of the fact that his wife had not returned to him by Muhammad Afzal deceased. It is prosecution's own case that the appellant before he took out pistol from his Shalwar held Muhammad Afzal deceased responsible for the non-return of his wife. Considering the facts in totality. We are of the view that this is an extenuating circumstance to warrant lesser sentence and this is in line with the dictum laid down by this Court in a case having similar facts which is reported in Qambar Ali v. The State PLJ 1974 Cr.C. (Lah.) 474 wherein it was held:-- "Pakistan Penal Code (XLV of 1860).
' . 302---Sentence of death---Alteration---To one of imprisonment for life---Justifiable in presence of mitigating circumstances (like refusal by deceased to return appellant's wife, although there was some gap between refusal and occurrence."
13. For what has been discussed above, the appeal is dismissed. The sentence of the appellant is altered to life imprisonment and he is also awarded compensation of Rs,20,000 which if recovered shall be given to the legal heirs of Muhammad Afzal deceased. He shall also be extended the benefit of section 382-B, Cr.P.C. With this modification in the sentence, the appeal is dismissed. The death sentence is not confirmed.