' MUHAMMAD BASHIR JEHANGIRI, ACTG. C.J.---This appeal by leave is from the judgment of a learned Division Bench of the Lahore High Court, Lahore, maintaining the conviction of Feroze Khan appellant under section 302, P.P.C. And confirming the sentence of death.
2. The occurrence took place in the area of village Ashgari Police Station, Kala Bagh in Mianwali District, on 29-4-1993 at about Deegarwela, in the area of Police Station Kala Bagh. A first information report was lodged with the said Police Station by Mst. Amir Jan (P.W.6), mother of the deceased, on 30-4-1993 at 8-30 a.m.
3. The prosecution story is that Mst. Amir Jan (P.W.6) alongwith her son and Mohabat Khan, and her brother-in-law were present in their house in village, Bani Afghan. Khan Badshah in order to attend the Khariat function set out for the house of one Naseer Ahmed of his village. When he reached at about 10/11 Karams towards South near Wahan Pani, Habibullah duly armed with Klashnikov, Anar Baig and Feroz Khan appellant and Haibet Khan accused, all three armed with rifles; emerged from their respective houses and after raising 'Lalkara' started firing at Sakhi Badshah. According to the prosecution the first shot was fired by Habibullah accused hitting Sakhi Badshah deceased on his face while second shot was fired by Anar Baig injuring deceased's nose while the third shot was fired by Feroze Khan appellant which hit the deceased on his right eye. As a consequence Sakhi Badshah fell on the ground. Mst. Amir Jan (P.W.6), Badshah Khan (P.W.7) and Mst. Afsar Janam (P.W.8) widow of the deceased, were attracted to the spot alongwith many other co-villagers and witnessed the occurrence. The accused then decamped from the spot. Sakhi Badshah deceased succumbed to the injuries on the spot.
4. It is alleged that about 25 days prior to the occurrence, Habibullah etc. Accused and the convict- appellant were returning home from Kala Bagh when some one had surreptitiously fired at them.
The accused party had suspected the involvement of Sakhi Badshah deceased in the firing, therefore, efforts were made to satisfy the accused party about the innocence of Sakhi Badshah before a "Jirga" but the accused persons declined to accept the innocence of Sakhi Badshah. It is alleged that in furtherance of their common intention, the accused and the appellant had committed the murder of Sakhi Badshah deceased.
5. The prosecution case is supported mainly by the ocular evidence of the eye-witnesses, namely, Mst. Amir Jan (P.W.6), Badshah Khan (P.W.7) and Mst. Afsar Janam (P.W.8). Muhammad Bakhsh, S.I., (P.W.9) who had investigated the case recorded the F.I.R. Exh.P.C. At the instance of Mst. Amir Jan (P.W.6) through an Interpreter Mohabat Khan, inasmuch as she could speak only "Pushto" He set out for the spot and conducted the formal investigation. He entrusted the dead body for post- mortem examination to Dost Muhammad F.C. After completion of the formal investigation, he searched for the accused but they were not traceable. He prepared the site plan Exh.P.E. Through Saleh Muhammad Khan, Patwari (P.W.5) and arrested Feroze Khan appellant and Anar Baig accused on 7-7-1993. On 11-7-1993 both the accused led the Investigating Officer to the recovery of Rifles P.4 and P.S. The other two accused Habibullah and Haibet Khan were arrested on 12-7-1993 after which all the four accused including the appellant were sent up for trial on the charge of the murder of Sakhi Badshah.
6. Mst. Amir Jan (P.W.6) had supported the prosecution case which she had already set up in the F.I.R. Exh.P.C. Badshah Khan (P.W.7), who is the father-in-law of the deceased and Mst. Afsar Janam (P.W.8) who is the widow of the deceased, had reiterated the prosecution version of the occurrence put forth by the first informant, Mst. Amir Jan (P .W .6).
7. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations and explaining his innocence attributed his false implication in the case to the previous enmity between the parties on suspicion.
8. The learned trial Judge after appraising the evidence convicted all the accused under section 302/34, P.P.C. And sentenced all of them to suffer death.
9. The four convicts appealed to the Lahore High Court, Lahore. Pending hearing of the appeal, one of the convicts, namely, Anar Baig died, therefore, the appeal, to his extent was held as abated while the appeal of Habibullah was allowed on the ground of conflict in ocular account and the medical evidence. Haibat Khan co-accused of the appellant was acquitted as he had not made any effective firing at the deceased. However, the appeal of the appellant was dismissed and as stated earlier, the murder reference against him was answered in the affirmative. A Jail Petition was moved by the convict to impugn the legality and propriety of his conviction recorded and the sentence of death awarded to him.
10. Leave to appeal was granted by this Court to consider whether the conviction recorded against and the sentence awarded to the appellant was not sustainable on the grounds--
(i) that the report was lodged after 18 hours of the murder;
(ii) that the evidence of Muhammad Bakhsh indicates that he had conducted investigation before the recording of the F.I.R.;
(iii) that the evidence of the eye-witnesses was disbelieved in respect of two co-convicts of the appellant while it was accepted against the convict-appellant and;
(iv) that the medical evidence clearly contradicted the ocular testimony furnished by the eye- witnesses.
11. Syed Ali Hassan Gillani, learned Advocate Supreme Court appearing on behalf of the convict- appellant contended that the occurrence having taken place in broad daylight near the village, the prosecution has failed to produce disinterested witnesses and only relied on the ocular evidence furnished by Mst. Amir Jan (P.W.6), Badshah Khan (P.W.7) and Mst. Afsar Janam (P.W.8) who were not only closely related inter se and to the deceased but also highly interested witnesses and admitted blood feud enmity between the parties.
12. We regret we cannot subscribe to the proposition canvassed before us by Syed Ali Hassan Gillani, learned Advocate Supreme Court. It is unfortunate that disinterested public witnesses do not come forward to depose against the culprits for fear of reprisals from them. The Courts have, therefore, reluctantly refused to insist on the appearance of public witnesses in the cases of culpable homicide. The contention that a witness who is related to the deceased or the prosecution witness or is related inter se is interested witness is no more a valid proposition. It is settled law by now that interested witness is the one who has an animus for false charge against the accused. Mere relationship of a witness to the deceased or the relationship of the eye- witnesses inter se is not enough of a reason to discard their testimony because such a witness is necessarily not an interested witness stricto senso. This Court has gone to the extent that even evidence of interested witnesses is always not discarded. Reference can be made to a recent case of this Court in Raqib Khan v. The State (2000 SCM R 163) wherein after reviewing earlier precedents of (i) Niaz v. State (PLD 1960 SC 387) (ii) Nazir Hussain v. The State (PLD 1965 SC 188) and (iii) Aslam and another v. The State (1997 SCM R 1284), the law enunciated was that "in the ultimate analysis, it is neither the relationship of the witnesses with the deceased or that of the P. Ws. Inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is inherently the worth of evidence of a witness that determines his reliability". In the case in hand, we find that no doubt three eye-witnesses are not only related inter se but are also closely related to the deceased and might have been interested witnesses nonetheless their testimony rings true particularly when the occurrence had taken place near the house of the deceased and, therefore, presence of the convict-appellant at the time and the place of occurrence can be believed.
13. The occurrence had taken place on 29-4-1993 at Deegerwela. The distance between the police station and the place of occurrence is about 35-36 kilometers in a hilly terrian. The learned Judges of the Division Bench have also noticed that due to the fear of the accused and the convict, they could not continue their journey to the police station soon after the occurrence. In any case, we do not find any suggestion to the effect that this delay had occasioned any deliberation qua the identity of the assailants. All the witnesses particularly the appellant being the real brother of the complainant and maternal uncle of the deceased was well-known to all the three witnesses. The objection that the delayed lodging of the F.I.R., adversely reflected upon the prosecution case is, therefore, of no consequence.
14. There is no substance in the contention that the evidence of Muhanunad Bukhsh, S.I., indicated that he had conducted the investigation before recording of the F.I.R. We have carefully read that portion of his statement but it does not convey the sense that he had conducted the investigation prior to the recording of the F.I.R. This apprehension on the part of the appellant is apparently misplaced.
15. As has been observed in a number of cases, in the circumstances similar to those involved in the case in hand, the parties resort to exaggeration and at times they do not come out with entire truth. Again it has also been declared as law that the incompleteness of" the story front both the sides would not deter the Courts of law to complete the true story for resolving the controversy. Still again it is unfortunate that the principle of falsus in uno falsus in omnibus is still alien to the criminal jurisprudence being followed in this country. The Courts have to undertake an arduous exercise of sifting the grain from the chaff. In the instant case, the learned Judges of the High Court had exercised the option of sifting the grain from the chaff and followed the precuation on the principle: falsus in uno falsus in omnibus and while acquitting the two co-accused of the appellant had convicted him. Therefore, no exception can be taken to the fact that the evidence of eye- witnesses was disbelieved in respect of the two co-convict of the appellant while it was accepted against the appellant before us.
16. Last but not the least, we find that the medical evidence does not in any way contradict the ocular testimony furnished by the three-witnesses who had successfully withstood the searching cross-examination.
17. The perusal of the record shows that the motive set up by the prosecution in the F.I.R. Firstly was not proved and secondly more than one motives were set up. In the circumstances of the-case, therefore, we are of the view that the motive has remained shrouded in mystery. Although lack of motive at times has not been accepted by this Court as a mitigating ,circumstance. But when one or two motives are set up and the prosecution witnesses are wavering and jump from one, motive to another, as in the instant case it had assumed the nature of mitigating circumstance. While maintaining the conviction of the appellant under section 302 (b), P.P.C., we partly accepted the appeal and reduce the sentence of death awarded to the convict-appellant to imprisonment for life. He shall also pay a sum of Rs,50,000 as compensation under section 544-A, Cr.P.C. Or in default to undergo rigorous imprisonment for 2 years. On realization, it shall be distributed between the mother and the widow of the deceased according to law. The convict is, however, held entitled to the benefit of section 382-B, Cr.P.C.
18. With this alteration in the sentence, we dismiss this appeal.