' IJAZ-UL-HASSAN, J.-- Appellants Muhammad Haneef and Sarfraz were tried by learned Sessions Judge, Mansehra alongwith Muhammad Shafique and Abdul Aziz for murder of Feroze Khan.
Muhammad Shafique and Abdul Aziz were given benefit of doubt and acquitted whereas Muhammad Haneef and Sarfraz appellants were found guilty under section 302-B, P.P.C. And sentenced to suffer life imprisonment vide judgment, dated 2-2-1997. The appellants were also directed to pay Rs,50,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo further six months simple imprisonment. The benefit of section 382-B, Cr.P.C. Was also given to them.
2. Both the convicts have filed Criminal Appeal (No,56 of 1997) against their conviction and sentence.
' The complainant has also filed Criminal Appeal (No,60 of 1997 under section 417(2)(A), Cr.P.C.) to the extent of acquittal of Muhammad Haneef and Sarfraz and Criminal Revision (No,20 of 1997) under sections 435/439, Cr.P.C. For conversion of life imprisonment into death and for increase of compensation amount and fine.
3. As all the above matters arise from a common judgment, therefore, they are all disposed of through this single judgment.
4. The crime in question is alleged to have taken place on 23-7-1993 at about 3 p.m. Near the shop of Muhammad Rafique in Village Naryat and the report (Exh.P.A.) about it, was lodged the same day at 19-45 hours by complainant All Rehman P.W. At Police Station Ghari Habibullah, distant 17/18 kilometres from the site of offence and it was recorded by P.W. Fazal Rehman, Head Constable.
5. According to the complainant on the fateful day Feroze Khan was on his way back to his house after offering the Jumma prayers in the village Mosque. When he reached near the shop of Muhammad Rafique situated, in village Naryat he was confronted by Muhammad Shafique, Muhammad Haneef, Abdul Aziz and Sarfraz. Abdul Aziz shouted in a loud voice saying "Pakroo".
Muhammad Shafique placed his hands on the eyes of Feroz Khan and Sarfraz caught hold of the hands of the victim. Muhammad Haneef, thereafter, inflicted Chhuri blows which landed on the head, arms, abdomen, chest and neck of the deceased. Having done so, Muhammad Haneef slaughtered Feroz Khan with Chhuri. The occurrence was witnessed by Muhammad Banaras and Qari Muhammad Sharif P. Ws. In addition to the complainant. On raising hue and cry the accused managed to run away from the spot. Previous enmity between the deceased and the accused was stated to be the motive, leading to the murder of the deceased.
6. Head Constable Fazalur Rehman P.W. After recording the report Exh.P.A. Prepared injury sheet and inquest report of the deceased and dispatched the dead body to the mortuary for post- mortem examination under the escort of P.W. Azizur Rehman, Constable. He also received and took into possession blood-stained shirt (Exh.P.1) of the deceased having cut marks vide memo. Exh.P.D.
In the presence of marginal witnesses. He sent copy of F.I.R. To P.W. Abdul Majeed Khan, S.H.O. For information. On receipt of copy of the F.I.R. The S.H.O. Proceeded to the spot and on reaching there prepared the site plan Exh.P.B. He took into possession small pebbles Exh.P.1, stained with blood, one Chitrali cap Exh.P.2 stained with blood and a Chhuri Exh.P.3 having blood stains and one cover Exh.P.4 made of paper vide recovery memo. Exh.P.C. In the presence of marginal witnesses. In view of the transfer of the S.H.O. The remaining investigation was conducted by P.W. Naqibullah Khan, S.H.O. He added certain points in the site plan at the instance of P.W. Banaras, placed on record report of the Chemical Examiner and submitted complete challan in Court.
7. Formal charge was framed against the accused to which they pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case examined 10 witnesses. Complainant Ali Rehman and his son Banaras P.Ws., furnished eye-witness account of the incident whereas Qari Muhammad Sharif P.W. Imam Masjid Naryat claimed having seen the mentioned P.Ws. Alongwith others at the spot on his arrival to the spot. He also claimed having seen the appellants near the village school in a running condition. The remaining witnesses are of formal nature.
9. Dr. Muhammad Safdar P.W.3 Medical Officer D.H.Q. Hospital Mansehra conducted autopsy on the dead body of Feroz Khan on 24-7-1994 at 7 a.m. And noted the following injuries on external examination:-- ' Mark of ligature on neck and dissection etc. Throat completely slaughtered, destroying all the vital structures of neck.
' Rigor mortis present.
' Injuries
(1) Incised wound measuring about 2" x 1/2" over frontal portion of the head.
(2) Resistant incised wound each replaced 3" apart over the dorsal aspect of the left fore-arm.
(3) Incised wound measuring about 2" x 1/2" over the right planter posterior side.
(4) Incised wound measuring about 2-1/2" x 1" over the left flank on posterior side.
(5) Stab wound over left hypochondrium with content coming out.
(6) Incise wounds both over right and left nipple region size 1/2" x 1/4".
' Internal injuries ' Thorax, superficial injuries on the walls, ribs and the cartrilages, larynx and tracheas were dissected. Major blood vessels of the neck were completely destroyed. Abdominal walls, peritoneum, stomach and large intestines were injured.
' Cause of death was found to be injuries to major vessels present in the neck resulting on account of acute haemorrhage and shock. Probable time between injury and death was found 15-30 minutes and between death and post-mortem 10-18 hours.
10. The trial Court held that the evidence on record leaves no room for doubt regarding the guilt of Muhammad Haneef and Sarfraz accused. So far as Abdul Aziz and Muhammad Shafique co- accused are concerned, the prosecution has failed to establish its case against them beyond reasonable doubt. Therefore, they are entitled to a finding of acquittal.
11. We have heard Mufti Muhammad Idris, Advocate for the appellants and Mr. Muhammad Ayub, Assistant Advocate-General for the State assisted by Mr. Muhammad Akbar Khan Swati, Advocate for the complainant. We have also perused the entire evidence with their able assistance.
12. It is recognized principle of law that in criminal administration of justice evidence furnished by interested witnesses related to victim or deceased cannot be discarded merely for the reason that the witness has relationship with the victim. However, the Courts have emphasized that in such-like situation efforts must be made to seek corroboration from other evidence available on record. As far as corroboration is concerned it does not mean that it should come from an independent witness but anything in the circumstances which tends to satisfy the Court that the witness has spoken truth can safely be considered to be corroborative evidence. Din Muhammad v. The Crown 1969 SCM R 777. There could be cases in which the witnesses closely related to the deceased but still his evidence has been accepted because there was consistency in his testimony and it was getting corroboration from other pieces of evidence available on record.
13. In the present case the eye-witness account of the incident, as stated above, has been furnished by Ali Rehman complainant and his son Banaras P.Ws. Complainant has reiterated the version narrated by him in F.I.R. And maintained that on the day of incident he was present on the spot when his deceased brother was done to death by Muhammad Haneef accused with Chhuri.
He also blamed the remaining accused and assigned to them a specific role in the commission of crime. P.W. Banaras has corroborated the statement of his father on all material particular points and implicated the accused for the murder of his uncle Feroz Khan deceased. Qari Muhammad Sharif P.W. Also stated that after offering "Jumma" prayers he was going to village Kuthiala to attend a funeral ceremony of one of his relative and he was on his way when he heard noise coming from the direction of the shop of Muhammad Rafique. While enroute to the spot he saw Muhammad Haneef and Sarfraz accused running near the school at a distance of 5 to 10 paces from him. On reaching the spot he saw the deceased lying there murdered. P.W. Banaras told him that the deceased was done to death by accused Muhammad Haneef and Sarfraz by dagger.
Before his arrival, Ali' Rehman, Banaras, Mst. Bibi Rifhat and Younas shop-keeper were present on the spot. They placed the dead body on the cot brought from the shop of Muhammad Rafique and Ali Rehman took the same to the police station for lodging report.
14. P.Ws. Ali Rehman and Banaras have given a straightforward and confidence inspiring account of the incident. They were subjected to searching and lengthy cross-examination but nothing material could be brought on record to shatter their testimony. It is true that both the B witnesses are related to the deceased but it is equally true that mere relationship of eye-witnesses with the deceased in the absence of any enmity is not sufficient to discard their straightforward and confidence inspiring evidence. It is well-established principle of Criminal Jurisprudence that in criminal cases the evidence of a witness is not to be rejected mechanically merely because the witness is an interested person but the Court has to be careful in weighing such evidence and seek whether the evidence strikes to Court as genuine or probable. The minor discrepancies appearing in the evidence of eye-witnesses, per se, are not considered fatal to the prosecution version and not sufficient to disbelieve the ocular evidence specifically when their presence at the scene of occurrence is proved beyond any reasonable doubt and they corroborate each other on material particulars. We have assessed the intrinsic worth of the statements made by Ali Rehman and Banaras P.Ws. And have reached the conclusion that they were present at the spot at the time of occurrence and had seen the appellants eliminating the deceased. So far as the statement of Qari Muhammad Sharif is concerned, he is absolutely an independent and impartial witness. He has admitted the presence of the above-named witnesses at the spot and has claimed having seen the appellants running away from the scene of occurrence. We have gone through the statement of this person and there is not a slightest doubt in our mind that he is truthful and that he has given a correct account of the incident. He was subjected to the test of cross-examination to show that he is telling lie on account of his enmity with the accused but nothing material could be elicited from him to doubt his credentials.
15. It is not denied that undue, unreasonable and unexplained delay in filing F.I.R. Leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied to police in order to avoid criticism of the report as being manipulated and result of deliberation and consultation. In the present case we find that the report has been lodged without loss of time. The occurrence had taken place in a hilly area. Immediately after the occurrence the complainant placed the dead body of the deceased in a jeep and proceeded police station to make report. The distance between the venue of occurrence and the police station is 18/19 kilometres. The complainant is a rustic villager of about 65 years of age. In the circumstances, the report cannot be said to have been made after deliberation and consultations.
16. Appellant Sarfraz is alleged to have caught hold of the hands of the deceased whereas appellant Muhammad Haneef is stated to have slaughtered the deceased with his Chhuri. He is also shown to have inflicted various Chhuri blows on the different parts of the deceased. The death is found to have occurred due to injuries caused to major vessels present in the neck. The medical evidence in the circumstances fully supports the testimony of Ali Rehman P.W.6 and Banaras P.W.7 and tends to suggest that they were present on the spot and had seen the occurrence. The contention of the learned counsel of the appellants that it looks strange that two persons closely related to the deceased did not apprehend the appellant Muhammad Haneef who was only armed with Chhuri, is of no avail because a person/witness cannot be discredited for his cowardice. The two witnesses may not courageous enough to apprehend the appellant who was armed with 1 Chhuri and was making murderous assault on the deceased.
17. During investigation of the case, a Chhuri, a cap and some pebbles/earth stained with blood were recovered from the spot and sent to Serologist for report. The report is in positive which fully lends strength to the prosecution version.
18. Our attention was drawn to the site plan prepared in this case at the instance of eye-witnesses wherein certain additions had been made subsequently at the behest of Banaras P.W. And an attempt was made to show that such additions/amendments were made for no other reason but to cover up the lacunas in the prosecution case. The submission has not impressed us. It is not denied that the site plans are prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case. The additions made in the site plan could not take away the probative force of the ocular testimony in the case PLD I 1976 SC 234 and PLD 1992 SC 211.
19. It was next contended by learned counsel for the appellants that the two co-accused have been acquitted on the basis of the same evidence and since the evidence was not found reliable in respect of the two co-accused it could not be reliable in the case of the appellants and, therefore, the appellants could not be convicted in its basis. We are of the opinion that nothing could be farther from the reality than this argument. The nature of the evidence in respect of the appellants is quite J different than the nature of evidence against the acquitted co-accused. Evidence against the co-accused is only that they were with the appellants but had themselves not done anything contributing to the commission of the offence except that Abdul Aziz asked his companions to catch hold of the deceased and Muhammad Shafique placed his hands on the eyes of the deceased. On the contrary, the evidence against the appellants is that Sarfraz caught hold of the hands of the deceased and Muhammad Haneef butchered him with his Chhuri. There is thus, no question of prosecution evidence having not been believed in the case of co-accused and yet believed in the case of the appellants. Learned counsel for the appellants in support of his submissions made in this respect relied on PLD 1985 SC 11, 1993 PCr.LJ 1367 and PLD 1993 SC 251. The cited rulings are distinguishable and speak of the different situation.
20. It was also submitted by learned counsel for the appellants that the occurrence had taken place at broad daylight in the heart of village Naryat, in front of the shop of Muhammad Rafique but no independent and impartial witness has been examined which tends to suggest that it was an unwitnessed crime. The submission is without force. It has come in evidence that at the relevant time the shop of Muhammad Rafique was closed and no unconnected person was present at the spot to witness the incident.
21. So far as the motive is concerned we find that some years prior to the incident Fazal Din father of Abdul Aziz acquitted co-accused was murdered and the deceased was charged. The deceased was convicted and sentenced. On arrival to the village the appellants were on a look to take revenge and on getting an opportunity they murdered the deceased as retaliation. It is submitted by learned counsel for the appellants that the deceased was a man of objectionable character and he was done away by unknown assailants. There is nothing on record in support of the accusation.
22. It seems to us, therefore, that the evidence of the witnesses was rightly believed qua the appellants and made basis of conviction of the appellants. There is no doubt that P. Ws. Ali Rehman and his son Banaras are relatives of the deceased but it is axiomatice that mere fact of relationship, does not render their testimony, ipso facto, unreliable. The question of veracity and reliability of witness is to be examined in the overall circumstances of each case. In the present case on a review of the entire evidence it appears to us that the eye-witnesses are natural witnesses whose testimony is not liable to be discarded as untrustworthy. Their statements are adequately corroborated by the testimony of Qari Muhammad Sharif P.W. Who is an independent and unconnected person. He was subjected to searching cross-examination but nothing could be elicited to doubt his credentials.
23. We now take up Criminal Appeal No,60 of 1997 and Criminal Revision No,20 of 1997 filed by the complainant questioning the-acquittal of the co-accused and praying for conversion of life imprisonment of the appellants into death sentence. Learned counsel for the complainant contended that the acquittal of the respondents Muhammad Shafique and Abdul Aziz was on wrong premises as sufficient evidence was led by the prosecution to prove their participation in the crime. We regret the submission is not forceful. As stated above, the main role of killing has been attributed to the appellants whereas an insignificant role has been assigned to the respondents.
After going through the impugned judgment and the evidence on the record we are of the view that the acquittal of the respondents does not suffer from any illegality so as to call for interference of this Court. The amount of compensation is also adequate and we do not feel inclined to enhance the same.
24. In conclusion, we consider that the conviction of the appellants is well-based on the prosecution evidence as accepted by the learned trial Judge and that the guilt of the appellants is established beyond reasonable doubt. No well-established principle of law laid down by the superior Courts seems to have been disregarded in the appraisement of evidence by the Court below.
25. As a result of the above discussion, both the appeals as well as the connected criminal revision fail, which are hereby dismissed and the impugned judgment is maintained.