MUHAMMAD FARRUKH MAHMUD, J.---This judgment would dispose of Criminal Appeal No.412 of 1999 and Murder Reference No.469 of 1999.
2. Mukhtar Hussain son of Ghulam Sarwar, appellant, alongwith Fida Hussain and Abdul Shakoor was sent up to face trial for causing murder of one Khadim Hussain son of Allah Dewaya. After conclusion of the trial, the learned trial Court vide judgment, dated 3-11-1999 acquitted Fida Hussain and Abdul Shakoor co-accused, convicted Mukhtar Hussain (appellant) under section 302(b), P.P.C. and sentenced him to death. Compensation amounting to Rs.50,000 in accordance with section 544-A, Cr.P.C. was also imposed upon the appellant, in default thereof the appellant was to further undergo for a period of six months S.I. Compensation if realized was to be paid to the legal heirs of Khadim Hussain-deceased. Feeling aggrieved Mukhtar Hussain has challenged his conviction and sentence through the instant appeal, while the trial Court has sent up the murder reference for confirmation of death sentence.
3. The law was set in motion by Iqbal Hussain P.W.3 son of the deceased (Khadim Hussain), when he appeared before Ashiq Hussain, Inspector/S.H.O. P.W.10 at Police Station Khangarh on 18-9-1996 at 10-15 a.m. On his statement F.I.R. No.193 Exh. P.B. was scribed for offences under section 324/34, P.P.C. Section 324, P.P.C. was substituted for section 302, P.P.C. after the death of Khadim Hussain.
4. According to F.I.R. Exh.PB, the complainant alongwith his father Khadim Hussain-deceased was returning to his house at about 8-30 a.m. after purchasing grocery. While they were passing through the grave-yard of Pir Kundan Sultan Nazdiki, they were surprised by Mukhtar Hussain armed with .12 bore gun, Fida Hussain armed with 12 bore gun and Abdul Shakoor empty-handed.
Mukhtar Hussain raised Lalkara threatening the father of the complainant that he would not be spared on that day and would be taught a lesson for involving Abdul Shakoor accused (his Behnoi) in the matter of theft of he-goat belonging to Ghulam Farid Khokhar. On hearing noise Nazar Hussain, brother of the complainant and Ghulam Farid son and Ghulam Haider P.W.4 cousin of the complainant, who were present outside their houses situated at a distance of one Acre from the place of occurrence reached the spot and within the view of the witnesses Mukhtar Hussain fired with his gun at Khadim Hussain, which hit on his abdomen. Mukhtar Hussain repeated the fire, which hit on the backside of the head of Khadim Hussain-father of the complainant. Fide Hussain also fired with his gun, which hit on the lower lip, nose and neck of the victim. P.Ws. could not rescue the deceased due to the threat issued by the accused, who after the occurrence escaped towards northern side. The motive for the occurrence as stated in the F.I.R. was that 5/6 months prior to the occurrence he-goat belonging to Ghulam Farid Khokhar cousin of the complainant (P.W.4) was stolen and it was suspected that the theft had been committed by Abdul Shakoor-accused.
Khadim Hussain deceased helped Ghulam Farid, cousin of the complainant, which infuriated Mukhtar Hussain and other accused, who forbade the deceased from helping Ghulam Farid and opposing Abdul Shakoor. It is also mentioned in the F.I.R: that prior to the occurrence Abdul Shakoor and Mukhtar Hussain accused had abused the deceased and also threatened him with dire consequences for 'Ns support for Ghulam Farid but the deceased due to his close relationship continued helping Ghulam Farid, therefore, Mukhtar Hussain and other co-accused felt aggrieved and on the fateful day fired at Khadim Hussain, father of the complainant, in order to murder him.
5. After registration of the case P.W.10 Ashiq Hussain, Inspector/S.H.O. reached the place of occurrence and recovered one empty cartridge P-1, which was taken into possession vide memo.
Exh.PC. he also collected blood-stained earth vide memo. Exh.PD. Both these memos. were attested by Ghulam Farid P.W.4 as well as by one Nazar Hussain, who was given up, On the same date i.e. 18- 6-1996, he moved an application Exh.PJ before the Medical Officer inquiring whether Khadim Hussain was in a position to make statement or not and he was informed vide report Exh.PJ/1 that Khadim Husssa in was unconscious and unable to make any kind of statement. After receiving information that Khadim Hussain died on the same day due to the injuries, P.W.10 prepared injury statement as well as inquest report.
6. The appellant was arrested by Ghulam Shabbir Khitran, S.I. P.W.7 on 23-11-1996 and allegedly led to the recovery of 12 bore gun P-2 lying in a trunk in his house, which was taken into possession vide memo. Exh.PK attested by Murid Abbas, A.S.I., P.W.8 and one Muhammad Iqbal, Constable, who was given up.
7. After the investigation the case was sent up for trial and charged was framed. The appellant denied the charge and claimed to be tried. Hence the trial commenced.
8. During trial the prosecution produced 11 witnesses and after submitting reports of Chemical Examiner Exh.PO, Serologist Exh.PP and Forensic Science Laboratory Exh.PQ closed its case.
9. P.W.3 Iqbal Hussain and P.W.4 Ghulam Farid appeared as eye-witnesses. They also stated about the motive. Ghulam Farid also stated about the spot 'recoveries. P.W.6 Dr. Muhammad Sadiq Shah testified about the initial medical examination as well as post-mortem of Khadim Hussain. Ghulam Shabbir Khitran, S.I. P.W.7 stated about the arrest of the appellant, recovery of gun and partial investigation. Murid Abbas, A.S.I. P.W.8 testified about the recovery; of gun. Ashiq Hussain, Inspector/S.H.O. P.W.10 testified about the registration of the case and initial investigation. Rest of the witnesses were formal in nature.
10. The appellant in his statement under section 342, Cr.P.C. denied the charge and in reply of question No.7 stated as under:--- "It is a blind murder. The deceased was a 'Khudai Faujdar'. He was in the habit of making applications against every person who is suspected or not, therefore, every 'Badmaash' of the Elaqa or noble persons were not on good terms with him. Someone in the darkness has murdered him and his family in connivance with my opponent got me involved in the case."
The appellant refused to avail the opportunity of appearing as witness in his defence in accordance with section 340(2), Cr.P.C. and also did not lead any defence.
11. The learned counsel for the appellant has argued that P.Ws. 3 and 4 eye-witnesses were close relatives of the deceased, as P.W.3 was his son while P.W.4 was cousin of P.W.3 and that no independent witness was cited or produced by the prosecution, the ocular account was disbelieved qua the acquitted co-accused Fida Hussain and Abdul Shakoor although the motive was attributed to Abdul Shakoor while effective firing was attributed to Fida Hussain; that there was no independent reliable evidence available against the appellant, therefore, conviction could not be passed on the statements of P.Ws. 3 and 4, who stood disbelieved qua two of the co-accused.
He places reliance on the case of Umar Hayat v. The State PLD 1995 SC 526. He has further argued that the medical evidence did not support the prosecution case as according to the medical evidence firing was made from the close distance while according to P.Ws the firing was made from a distance of 3/4 Karams; that the motive was trivial and no independent witness regarding the motive was produced during the trial; that P.W.3 stated that he only heard about the story of theft of he-goat while P.W.4 admitted that no threats were issued within his presence; that the F.I.R. was fabricated as the complainant P.W.3 himself admitted that he, reported the matter to the police station after the death of his father; that the recovery of gun could not be relied upon in the manner as the prosecution has put it, as no one from the locality was associated during the recovery proceedings; that nothing was brought on the record to show who deposited the recovered empty with the Forensic Science Laboratory; that it was a licenced gun; and that the case of the prosecution was replete with doubts, therefore, the appellant merited acquittal.
12. Conversely, the learned counsel for the complainant and the learned counsel appearing on behalf of the State have argued that it was daylight occurrence; that the. P.Ws. have no personal enmity or grudge to involve the appellant falsely in the case; that two co-accused were acquitted by way of abandon caution on the principle of benefit of doubt and their acquittal in no way weakens the case of the prosecution against the appellant; that independent corroboration of ocular account in the shape of medical, motive and recovery evidence was available; and that the appellant has taken life of an innocent person and deserves no sympathy.
13. We have heard the learned counsel for the parties and gone through the entire evidence minutely. The place of occurrence has not been challenged. It was suggested to P.W.3 Iqbal Hussain that the occurrence took place in the darkness of night but no question was asked from the Doctor, who appeared as P.W.6, about the duration of the injuries and a perusal of the evidence given by the Doctor reveals that the occurrence has not taken place in the darkness of the night but it had rather taken place in the morning as stated by P.Ws.3 and 4. It is true that P.W.3 is son and P.W.4 is cousin of P.W.3 but their relationship with the deceased would not disqualify them as P.Ws. and their evidence cannot be thrown out on this score alone. In any case Iqbal Hussain P.W.3 had no personal grudge or motive against the appellant to involve him in the murder of his father.
An interested witness was defined by the Hon'ble Supreme Court of Pakistan in the case of Iqbal alias Bhala and 2 others v. The State as follows:--- "An interested witness is one who has a motive for falsely implicating an accused, is a partisan witness and is involved in the matter against the accused."
The occurrence took place on 18-9-1996 at 8-30 a.m. Iqbal Hussain P.W.3, son of the deceased, took his father to DHQ Hospital, Muzaffargarh and reached there at 10-45 a.m. It is in the evidence that Hospital was at a distance of 13/14 Kms. from the Police Station Khangarh while the police station was situated at a distance 'of 9 miles from the place of occurrence. In other words it appears that the complainant P.W.3 did not loose any time and rushed his wounded father to the Hospital. P.W.6; who initially examined the deceased prepared his medico-legal report Exh.PE. According to which Khadim Hussain deceased was brought to the Hospital by Iqbal Hussain and at that time no one from the police. accompanied him. P.W.6 testified before the Court on Oath and reiterated the fact that Iqbal Hussain had brought Khadim Hussain to the Hospital and at about 11-00 a.m. Iqbal Hussain took his injured father towards Nishtar Hospital. Iqbal Hussain is a truthful witness and he frankly admitted during cross-examination that the case was registered by the police, when he reported about the death of his father. P.Ws.3 and 4 have fully corroborated each other on all the material points and their evidence is confidence-inspiring. Deceased was father of P.W.3 and uncle of P.W.4 and they had no reason to substitute the accused for the real killer. Substitution is otherwise rare phenomenon. I am further fortified in my views by placing reliance on the case of Muhammad Akhtar Ali v. The State (2000 SCM R 727). The occurrence took place in the early morning and the deceased was coming to his house after purchasing grocery. The presence of P.W.3 alongwith his father was quite natural in the circumstances of the case. It is in the evidence that the place of occurrence was at a distance of 32 Karams from the houses of the P.Ws. There is nothing on the record to show that there was some hindrance in between the place of occurrence and the houses of the P.Ws., therefore, it cannot be said that it was not possible for P.W.4 to reach the scene of occurrence after hearing the alarm.
14. Much emphasize has been laid on the point that Fida Hussain co-accused, who has also allegedly fired at the deceased was acquitted by the trial Court and Abdul Shakoor, who had a direct motive was also acquitted by the trial Court, although P.W.3 and P.W.4 deposed against them. A perusal of the evidence reveals that the trial Court has acquitted the two co-accused on the principle of safe administration of justice by applying golden principle of doubt. P.W.7, who had investigated the matter, had declared both the co-accused innocent. He was not cross- examined by the prosecution. No recovery was effected from Fida Hussain co-accused while there was no allegation that Abdul Shakoor co-accused had any weapon with him. In these circumstances, the credibility of P.Ws.3 and 4 could not be said to have been shaken as a result of acquittal of said co- accused. It is by now a settled proposition that maxim "falsus in uno falsus in omnibus" has no universal application and,the grain has to be sifted from the chaff. The aforementioned maxim was no more applicable for discarding the evidence of a witness as a whole and the evidence which was credible was to be accepted. If any authority is needed on this point, reference can be made to, the cases of Muhammad Ahmad and another v. The State (1997 SCM R 89) and Ahmad Khan v.
Nazir Ahmad and 3 others (1999 SCM R 803).
15. The medical evidence supports the ocular account furnished by P.Ws.3 and 4. According to P.W.6 the deceased received five fire-arm injuries on his person. Injury. No.5 was found on abdomenal cavity while injury No.2 hit on the right upper nape of neck below occipital region. Injury No.3 penetrating in region on right pinna crossing it through and through went into mastoid process. According to Doctor injuries Nos.5 and 3 proved fatal and both were attributed to the appellant. No question was asked about the duration of the injuries, which leads to a logical conclusion that the time of occurrence was in fact not in dispute.
16. P.Ws.3 and 4 also supported the motive as given in the F.I.R. According to these P.Ws. Abdul Shakoor co-accused was being implicated in theft of he-goat belonging to Ghulam Farid P.W.4. The deceased was supporting Ghulam Farid, as he was his close relative and the appellant was highly annoyed as the person, accused of the theft, was his brother-in-law (Behnoi). During cross-examination P.W.3 'stated that his father was abused and threatened by the appellant within his presence many a time over the aforementioned dispute. However, in reply to a question he stated that he heard about this theft. The appellant cannot take benefit of this admission in any manner, as it was suggested to P.W. that the dispute of theft of he-goat was resolved but P.W.3 categorically denied it and stated that the dispute continued. P.W.4 Ghulam Farid also stated about the existence of the motive (dispute over the theft of goat). On the other hand, the appellant could not come out with any plausible explanation as to why he was involved in this case. He could not point out any other ill-will or enmity between him and the P.Ws. His only explanation was that some-body else had committed the murder of Khadim Hussain deceased, as he was Khudai Faujdar and he was falsely involved in this case. Why he was falsely involved in the case, there is no explanation on record.
17. The arguments of learned counsel for the appellant that in case the motive was correct then why Ghulam Farid P.W.4 was spared, is only naive, as it is in the evidence that ill-will and grudge existed in the heart of the appellant against the deceased and when the appellant came across the deceased, at that time Ghulam Farid was not with him. P.W.3 has further clarified the matter that the appellant had been extending threats and had been abusing the deceased. In these circumstances, we feel that the prosecution has successfully proved the motive.
18. It is true that P.W.3 has admitted that F.I..R. was registered after the death of his father. This admission by itself proves that P.W.3. who is a illiterate person, had come out with a straightforward account and the lapses on the part of the police officers asked for departmental action and in no way weaken the prosecution case.
19. According to report of the Forensic Science Laboratory Exh.PQ, the recovered empty from the spot wedded with the gun recovered from the appellant. A perusal of the report shows that the empty was deposited with the Laboratory on 15-10-1996 while the gun was deposited with the said Laboratory on 5-12-1996. It is a very important circumstance which rules out the possibility that the empty was obtained after the recovery of gun. P.W.10 Ashiq Hussain, Inspector/S.H.O., who investigated the case on the date of occurrence, stated that he took into possession empty cartridge P-1 vide recovery memo. Exh.P.0 from the place of occurrence. His statement was accepted in toto and he was not cross-examined on that point. No suggestion was put to him that no empty was recovered from the place of occurrence.
20. There is another important circumstance that the recovery memo. which was prepared on 18- 9-1996 bears the name of Mukhtar Hussain-appellant. Similarly the recovery memo. Exh.PD relating to collection of blood-stained earth also bears the name of the appellant. All these facts lead to one conclusion that there was no doubt from the day one about the commission of offence by the appellant.
21. The argument of the learned counsel for the appellant that public witnesses were not associated during the recovery proceedings is of no use, as the appellant himself admitted that he handedover his gun to the Investigating Officer. According to the report of the Forensic Science Laboratory, as already stated that the recovered empty and the gun were received on different dates through sealed parcels. The name of the Constable, who deposited the parcels with the Laboratory has also been mentioned.
22. The upshot of the whole discussion is that we are of the considered opinion that the prosecution has proved its case against the appellant beyond doubt. No mitigating circumstance exists. We dismiss this appeal and maintain the conviction and sentence of the appellant-Mukhtar Hussain awarded to him by the trial Court.
23. Murder Reference bearing No.469 of 1999 is answered in Affirmative. Death sentence is Confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.