' HAMID ALI MIRZA, J.---Criminal Appeal No,321 of 1999 filed by Dosa and Wazir, convicts, with leave of this Court and Criminal Petition for Leave to Appeal No,141-L of 1998 filed by Mst. Mehraj Bibi for enhancement of compensation, arise out of judgment dated 13-2-1998 in Criminal Appeal No,200 of 1992, Murder Reference No,82 of 1992 and Criminal Revision No,187 of 1992, passed by learned Division Bench of the Lahore High Court, Lahore, whereby appeal filed by Dosa and Wazir, appellants/convicts was dismissed maintaining the conviction and sentence of death against them on two counts with compensation of Rs,50,000 or two years' R.I. In case of default on each count, and murder reference was affirmed in respect of convicts/appellants Dosa and Wazir, when convict Dosa's appeal stood abated because of his death, so far criminal revision application for Mst. Mehraj Bibi for enhancement of compensation amount was dismissed.
2. Brief facts of the case are that Yaqoob, complainant P.W.6, got registered F.I.R. No,301 of 1990 at Police Station Gogera on 27-9-1990, stating therein that he and his nephews Muhammad Ali and Imam Ali tethered their animals at an open place in front of their house and he slept near animals to look after them while his son Jaffar and nephews viz. Imam All and Muhammad Ali slept within the compound of their house. At about 5-15 a.m. In morning hours he woke up but was still in his bed when he saw that Wazir, Dosa and Dona all armed with guns had come there. Dona stood guard over him pointing the gun at him and told him that in case he raised his voice he would be shot. Wazir went towards the cot of his nephew Muhammad Ali and Dosa proceeded towards the cot of his nephew Imam Ali when he saw Wazir shot Muhammad Ali and Dosa shot Imam Ali with their respective guns. Jaffar and Mst. Sairan Bibi wife of Bashir Ahmed and Mehraj Bibi wife of Imam Ali, were attracted and they saw the occurrence. Thereafter, the assailants ran away declaring that they had avenged the murder of Rasam. Muhammad Ali and Imam Ali succumbed to injuries and died at the spot. It was further stated that his brother Noora was murdered in 1965 by Muhammad Ali son of Hameed and Wazir son of Nuqra when Muhammad Ali was sentenced to death whereas Wazir was given life imprisonment who returned home after serving his sentence. It was further stated that in 1984 Wazir and other persons mentioned in the F.I.R. Had seriously wounded his brother Hussain and nephew Muhammad Ali, Imam Ali and Muhammad Shafi when his brother and nephews had also caused injuries to Shameer, Chughta and Wazir. In 1990 Abdur Rashid, Abbas and Nuqra had murdered Rasam son of Sadiq whereas Dosa and Dona sons of Sadiq and Wazir son of Nuqra murdered Muhammad Shafi son of Sanatta and cross-cases were registered against both the parties which were then pending in the Courts of law. Dosa, Dona and Wanr accused suspected that his (complainant's) nephews Muhammad Ali and Imam Ali had got Rasam murdered when the latter rendered explanation about their non-involvement, but all the same Dosa, Dona and Wazir harboured grudge against them and, therefore, the appellants/convicts murdered them.
3. After completion of usual investigation the present appellants, Dosa, Wazir, and co-accused Dona who died during pendency of appeal were sent up to face the trial before the Sessions Judge, Okara. Learned trial Court Judge charged the said appellants/accused under section 302/34, P.P.C.
To which they pleaded not guilty, therefore, prosecution examined as many as ten P.Ws. In support of the prosecution case. The appellants/convict and co-accused Dona in their 342, Cr.P.C.
Statement denied the charged offence and submitted that motive behind the occurrence was that in the year 1965 Noora younger brother of Yaqoob was murdered and in that case Wazir accused and one Muhammad Ali were sentenced to death, subsequently Wazir's sentence was altered to imprisonment for life who was released in 1984 and was living in Chak for last seven years and used to come across the complainant, deceased and their other relations daily and there has been no animosity between them. So far the guns Exhs.P-6, P-7 and P-8, it was stated that the same were planted. So far the P.Ws., they stated that they were inimical towards them and have been falsely implicated. The appellants/convicts/accused did not examine any witness in their defence, and did not appear as their own witness under section 340(2), Cr.P.C. In disproof of charge read out against them. Learned Sessions Judge, Okara, after recording evidence and hearing learned counsel for the parties convicted the appellants Dosa, Wazir and co-accused Dona under section 302/34, P.P.C. For committing murder of Muhammad Ali and Imam Ali and sentenced them to death with fine of Rs,50,000 or in default two years' R.I. And amount of fine if realized be paid to the legal heirs of the deceased. All the three convicts namely Dosa, Wazir and Dona appealed against their conviction and sentence passed by learned Sessions Judge, Okara before the Lahore High Court, Lahore and learned Sessions Judge also made murder reference to the High Court while Mst. Mehraj Bibi also filed criminal revision for enhancement of compensation against the appellants/convicts.
4. Learned Division Bench of the High Court dismissed the appeal of the appellants when the appeal of Dona abated during the pendency of appeal and the criminal revision of Mst. Mehraj Bibi was also dismissed. This Court after hearing Criminal Petition for Leave to Appeal No,131-L of 1998 filed by the appellants/convicts Dosa and Wazir, granted leave to appeal as per order dated 10-8- 1999 to consider inter alia the points raised and whether the occurrence was "unwitnessed". Mst.
Mehraj Bibi the widow of Imam Ali also filed Criminal Petition for Leave to Appeal No,141-L of 1998 against judgment dated 13-2-1998 in Criminal Revision No,187 of 1992.
4-A. The appeal of Dosa and Wazir and the Criminal Petition for Leave to Appeal No,141-L of 1998 of Mst. Mehraj Bibi are heard by us and disposed of by this judgment after having perused the record minutely.
5. Contentions of the learned counsel for the appellants are that the occurrence of the incident was unwitnessed and all the eye-witnesses are related inter se and their evidence was full of material contradictions and P.W.6 Muhammad Yaqub was of bad character and inimical to the appellants who being old man with weak sight could not have seen the incident considering that boundary wall between his house and that deceased being six feet in height. Learned counsel further contended that Jaffar P.W.7, Mst. Mehraj Bibi P.W.8 and Mst. Sairan Bibi did not see the occurrence as they arrived after the incident. He also submitted that as per evidence Investigating Officer Yar Muhammad Dogar incident was unwitnessed and taken place somewhere in the midnight whereas P.Ws. Deposed that the incident took place at the time of "Fajar" prayer. He also submitted that in the F.I.R. It has been stated that Mst. Meharj Bibi was attracted on hearing fire shots whereas she, in her deposition, stated that she had gone to ease herself and when she came back the accused fired at the deceased. Learned counsel in the end contended that testimony of P.Ws. Was not confidence-inspiring, therefore, conviction and sentence passed were liable to be set aside in this appeal. Learned counsel for the petitioner in Cr.P. No,141-L of 1998, Mst. Mehraj Bibi, widow of Imam Ali deceased, submitted that learned trial Court and the learned Division Bench of the High Court have properly appreciated the evidence on record on the basis of the confidence-inspiring ocular testimony of P.Ws. And medical evidence with motive having been proved. He has referred to the evidence of P.W.2 Muhammad Sharif, P.W.6 Muhammad Yaqub and P.W.8 Mst. Mehraj Bibi. He submitted that from the evidence it would appear that incident had taken place around 5-00 a.m.
And not at the mid-night considering also the evidence of Dr. Fayyaz Ahmad Qaiser, time between death and post-mortem examination was about ten hours, therefore, keeping in view the said duration of time and the evidence of P.W.2 Muhammad Sharif, dead body was produced before the .Doctor at about 3-00 p.m. Which period of time if reversed, the time of occurrence would be around the time of occurrence as deposed by P.Ws. He also submitted that a perusal of the site plan of the occurrence Exh. P.M. Would show that there was no door or boundary wall between the place where P.W.6 Yaqoob was sleeping and the place where the deceased were killed. He also submitted that mere fact, the P.W.6 was projected by his opponents a person of bad character as stated by him in the cross-examination would not be enough to make his testimony unbelievable and pf no credence when he had been found to have stated truth in respect of the incident where his near and dear were killed and would not have spared the real culprits and substituted the innocent in commission of the crime. He further submitted that P.W.8 Mst. Mehraj Bibi being a widow of deceased Imam Ali residing with her husband the deceased, was a natural witness to be present at the place of occurrence and no material has been brought on record that she arrived at the place of incident after the appellants left the place after having killed the deceased or that she could not have seen the crime committed by the appellants. He submitted that it was not suggested by the appellants to P.W.8 that she had enmity with the appellants or that appellants had not committed the incident. He further stated that she being illiterate lady and having been examined after more than thirteen months from the date of occurrence, minor discrepancies in her evidence were likely to occur which being not material could not be said that her testimony in its entirety was not confidence-inspiring. Learned counsel submitted that learned Division Bench has not given any reason for dismissal of criminal revision filed for enhancement of compensation. He submitted that both the deceased were young persons aged 35 and 38 years and they were wantonly murdered by the appellants leaving their dependants without any support, therefore, the compensation awarded under section 544-A, Cr.P.C. Was inadequate which required to be enhanced.
6. We do not find substance and merit in the contentions and submissions of learned counsel for the appellants and find force in the submission of learned counsel for Mst. Mehraj Bibi, petitioner in Cr.P.141/L of 1998.
7. Learned Division Bench of the High Court after scrutiny of the entire evidence observed:-- ' "There are inherent infirmities in the testimony of Yaqub (P.W.6) and Jaffer (P.W.7). They live in a separate house from that of the deceased. Both the houses are separated from each other by a boundary wall of man's height. It is quite possible that they might have been attracted after hearing the shots and thus did not see the assailants firing at the deceased.
' However, as far as Mst. Mehraj Bibi (P.W.8) is concerned, she is an inmate of the house, and therefore, a natural witness. Whether the occurrence took place towards the earlier hour of the morning or close to dawn in either event, her presence cannot be ruled out. She could have easily said, that the moment the fire shots were fired she awoke up and saw the accused. On the contrary she has rather given a truthful and natural account i.e, she had gone out to ease herself before sunrise and when she got back alongwith Mst. Sairan Bibi, she saw both the accused had taken one shot each at her husband and Muhammad Ali deceased.
' Her testimony finds support from the medical evidence as well. Both the shots were fired from close range as there was blackening around the wounds. The dimensions of the wounds indicate that apparently the shots were fired by two different weapons. The time of occurrence as given by P.W.8 gets support from the post-mortem report.
' It is difficult to imagine that Mst. Mehraj Bibi would leave the real accused of the murders of her husband and husband's brother and substitute innocent people instead. In our view her solitary statement affirmed by the medical evidence is sufficient to maintain conviction.
12. As far as the Investigating Officer is concerned, the trial Court has dubbed the opinion expressed in his cross-examination to be concessional in nature. It is any case, of no evidentiary value; being just an inadmissible expression of opinion by an Investigating Officer."
8. Perusal of Exh.P.M., the site plan, would show that deceased Imam Ali was sleeping at point No,1 while deceased Muhammad Ali was sleeping at point No,2 and P.W.6 was sleeping at point No,3 while P.W.8 Mst. Mehraj Bibi was at point No,4 when she, saw the incident while P.W.7 Jaffar was at point No,5 when he saw the incident. P.W.6 was sleeping in the open space outside the thoroughfare leading to the place where the deceased were sleeping having no boundary wall.
Mere fact that P.W.6 has been designated by his opponents to be a person of bad character and was involved in cases would not lead to a conclusion that whatever he has deposed with respect to commission of crime against the appellants was false in its entirety or was doubtful. The testimony of such witness is only to be properly sifted and weighed with necessary care and caution in the light of the facts and circumstances of the case independently, with other pieces of evidence on record. It may be observed that P.W.6 was examined after about thirteen months and he being over seventy years of age, he could not be expected to remember all minute details of facts of the case as such certain minor discrepancies were bound to occur. The testimony of P.W.6 consists of all material particulars with regard to the commission of murder wherein he has specifically assigned the role of firing at the deceased by the appellants which could not be shaken or discredited on the material points leading to the commission of crime. It may further be observed that this Court has time and again held that mere fact that the witness is closely related to the deceased would not itself be sufficient to reject his testimony on that score, considering also that the said witness would not normally allow real murderer to escape by implicating innocent person. Reference may be made to the decision of this Court in case of Zar Bahadar v. The State (1978 SCM R 136). P.W.7 Jaffar has deposed that on the day of incident at about 5-15 a.m. He was going to fodder his cattle, he witnessed the occurrence when the appellants fired with their .12 bore guns at the deceased when the co-accused Dona armed with gun was standing near the cot of P.W.6. P.W.8 Mst. Mehraj Bibi being a widow of Imam Ali has deposed that she had gone to ease herself and when she returned she witnessed from point No,4 that the appellants fired upon the deceased. Veracity of the said P.Ws. On the material points could not be discredited or shaken. She was also not even suggested any animus on her part against the appellants. Even if we discard the evidence of P.W.6 Muhammad Yaqoob and that of P.W.7 Jaffar then also testimony of Mst. Mehraj Bibi P.W.8 is unimpeachable reliable and confidence-inspiring, she being natural witness residing with the deceased would be sufficient to base conviction of the appellants which testimony is also corroborated by medical evidence because it would not be the quantity but quality of evidence which would be considered for making decision in the criminal cases. Reference may be made to Haq Nawaz and others v. The State (2000 SCM R 785). It may be observed that mere fact that P.W.8 is closely related to the deceased would not make her as interested witnesses so as to discard her testimony. This Court has time and again held that if the witness though being closely related to the deceased has stated the truth his testimony appeared to be confidence-inspiring and reliable the same cannot be discarded. Reference may be made to Abdul Ghafoor v. The State (2000 SCM R 919) and Muhammad Amin v. The State (2000 SCM R 1784). So far the contention of learned counsel for the appellants that the testimony of P.Ws. Was not confidence-inspiring on the ground that they have deposed that the incident took place at the time of Fajar prayer whereas P.W.10 Investigating Officer Yar Muhammad Dogar has deposed that incident had occurred at midnight and was unwitnessed occurrence would have no substance and merit considering the testimony of P.W.2 Muhammad Sharif who stated that he produced dead body before the doctor at 3-00 p.m. When the distance was about 4-1/2 kms. And P.W.4 Dr. Fayyaz Ahmad deposed that probable time which elapsed between death and post-mortem examination was about ten hours and if time period of ten hours is reversed, the occurrence time would come to be about the same as deposed by P.Ws.
It may be observed that the opinion of Investigation Officer is not binding upon the Court. It may be stated that in the instant case the said Investigating Officer has made obliging and concessional statement in favour of the appellants which cannot be relied upon because he was only Investigating Officer and not the eye-witness to say that it was unwitnessed incident. The said opinion being without any evidence in law being contrary to ocular confidence inspiring testimony of P.Ws. Cannot be considered for reaching to a conclusion that incident occurred at midnight and was unwitnesseed crime. There was no animus on the part of P.Ws. To falsely implicate the appellants in the commission of crime considering their testimony to be confidence-inspiring which is corroborated by medical evidence. Learned Division Bench and the Sessions Judge have held that prosecution evidence with regard to the commission of crime by the appellants was confidence-inspiring as such we have found no ground to interfere with such finding. Accordingly Criminal Appeal No,321 of 1999 has no merit and substance hence the same is dismissed.
8. So far Criminal Petition for Leave to Appeal No,141-L of 1998 filed by Mst. Mehraj Bibi, same has merit and substance, therefore, the same is converted into appeal and is allowed considering that two young persons aged 35 and 38 years have been wantonly killed by the appellants whose dependants have been left at the mercy of Almighty Allah, therefore, the compensation of Rs,50,000 awarded by both Courts is enhanced to Rs,1,00,000 (Rupees one lac) to be paid to the legal heirs of the each of deceased which on being realised be paid to the legal heirs of the deceased and in default to suffer two years' R.I. On each count.