SHAHZAD AKBAR KHAN, J.---Respondent Khawaj Muhammad son of Muhammad Alam was tried by the learned Sessions Judge, Abbottabad for the murder of Hukam Dad deceased by giving him blows with pick-axe. He was, however, acquitted by the trial Court on 3-11-1999. Mst. Nasim Jan the widow of the deceased being aggrieved of the acquittal order and judgment has filed this appeal under section 417-2(A) Cr.P.0 for convicting respondent Khawaj Muhammad for committing "Qatl- e-Amd" of her husband and to give him punishment according to law.
2. The facts of the prosecution case briefly are that on 26-11-1995 Hukam Dd had left for the house of Haider Zaman his maternal uncle situated in Drubbar. Khawaj Muhammd, at "Peshivela", started making road in the land belonging to them, (complainant party). On her preventing him she received abuses from Khawaj Muhammad and was told to bring forth her husband. In the meanwhile Hukam Dad appeared who also prevented Khawaj Muhammad from digging their land.
An altercation and grappling between Hukam Dad and Khawaj Muhammad ensued. Khawaj Muhammad caught hold of Hukam Dad and threw him to the ground giving him various blows with a pick-axe "Gaintee" due to which Hukam Dad received a number of injuries and died on the spot.
The occurrence was claimed to have been witnessed by P. Ws. Asghar Ali, Khawas Khan and one Abdur Rehman (not produced) besides the complainant. The motive which triggered the occurrence was that about 10 years before the occurrence the brother of Hukam Dad namely All Gohar was injured by Khawaj Muhammad. The land on which the path was being made by Khawaj Muhammad was transferred by him in the name of All Gohar (since dead) as consideration for the compromise. On registration of this case the incident was investigated during which the Investigating Officer on the pointation of Khawaj Muhammad recovered the weapon of offence, i,e,, "Gaintee" from beneath a heap of wheat crop which was having stains of blood. The same was got examined from the Forensic Science Laboratory and the report thereabout was found in positive.
Khawaj Muhammad also made a confessional statement before Attaur Rehman on 5-12-1995 who was then posted as M.I.C. Abbottabad. The site plan Ex. P.B. Was also prepared by the Investigating Officer at the instance of eye-witnesses. The other site plan Exh.PW/16/1 indicating the venue of recovery of weapon of offence was also drawn. Autopsy on the dead body of deceased Hukam Dad was conducted by Dr. Muhammad Irshad who appeared as P.W 7 and affirmed the post- mortem report which was prepared on 27-11-1995. The postmortem report indicated the following wounds found on the body of the deceased:-- EXTERNAL APPEARANCE. Middle aged, normal built, stiff, face and hand blood stained.
INJURIES.
1. Contused wound left side neck from vertebral column to sternal notch.
2. Three small abrasions (1/2 inch x 1/2 inch, 1/2 inch x 1/3 inch and 1/2 inch x 1/2 inch) at left cheek.
3. Bleeding through nose.
4. Gutter fracture 3-1/2 inch x 3 inch at left occipital region 2-1/2 inch above back to the left ear.
5. Eye blackening.
6. Face swollen.
CRANIUM AND SPINAL CORD. Skull fractured at left occipital region, membranes and brain were damaged.
THORAX. Blood vessels damaged at the site of the injury. Dr. Nazakat Iqbal Kareem, Medical Officer, RHC, Khanpur was examined as P.W. 11, who, on 28-11- 1995 had examined Khawaj Muhammad and found the following injuries. Abrasion over nose, face and trunk with laceration. Cause of injury was blunt and the duration was given by him from 1 to 3 days.
3. The learned trial Court on his analysis of the evidence formulated an opinion that the eye witnesses were not present and had not seen the occurrence. According to his assessment the occurrence had not taken place in the manner in which it was narrated by the eyewitnesses. He also doubted the honesty of Investigating Officer.
4. The learned counsel appearing on behalf of the appellant has raised and' argued the following contentions:-
(1) That the testimony of. Nasim Jan (P.W 4), Khawas Khan (PW.6) and Ali Asghar (PW.5) who furnished the ocular account of the event was wrongly rejected for reasons entirely alien to the law governing the appreciation of evidence in administration of criminal justice by magnifying the insignificant and inconsequential discrepancies/infirmities attributed to their testimony;
(2) that the presence of the eye-witnesses was doubted by the learned trial Court for invalid and fanciful reasons;
(3) that the corroborative evidence in form of blood stained pick-axe "Gaintee" recovered on the pointation of accused-respondent and the positive report of Forensic Science. Laboratory was totally ignored and the learned trial Judge has not given even passing remarks about this crucial evidence which has resulted into grave miscarriage of justice;
(4) that the learned trial Judge was wrong in holding that the prosecution could not establish the motive proceeding on the assumption that it was not proved that the land where the path was being constructed was the ownership of complainant party. The determination of ownership of land was not an issue before the trial Court;
(5) that the learned trial Court seriously erred in allowing itself to be influenced by the fact that the going of deceased to "Drubbar" was not proved.
5. On the other hand, before entering upon an endeavour to defend the judgment of acquittal on merits the learned counsel for the respondent contended that the principles on which a judgment of acquittal is to be interfered with in an appeal against acquittal were quite well established and the mere possibility of an alternative view furnishes no ground for interference. Unless it could be established that the judgment of acquittal was based on palpable misappreciation of law or misreading of evidence rendering the same to be untenable. He argued that the ocular testimony, for the reasons given by the learned trial Court, was rightly disbelieved as the same does not inspire confidence and does not bear any ring of truth. He contended that the accused- respondent was kept in illegal confinement and he was compelled to make a confessional statement as he was tortured by the police. He also maintained that as the prosecution had failed to examine the recorder of the confessional statement, therefore, the learned trial Court was completely justified in ignoring the same. He further contended that the motive was not proved and no independent witness to the occurrence was available with the prosecution.
6. The proper appreciation of the rival contentions raised and argued on behalf of the parties calls for a full examination and reappraisal of the evidence of this daylight occurrence where only one person has been charged for the offence and the incident was reported without an inordinate delay which elaborately contained the episode of the occurrence with unequivocal nomination of the accused and the eyewitnesses.
7. On going through the judgment of the learned trial Court we have noticed that at the very inception of his discussion the learned trial Court dealt with the motive of the case. It was observed that there was no cogent evidence on record to prove the allegations with regard to the construction of path and the altercation that took place between the deceased and the accused- respondent as the Patwari Halqa, who should have been examined, has not been examined to prove that the property whereupon the road was being made by the accused was owned by the deceased. In fact the determination of the ownership of land was not the issue to be resolved. The issue in fact was that a dispute arose on the construction of the path that led to the tragic incidence. A denied suggestion put by the defence to Mst. Nasim Jan widow of the deceased (P.W.4) indicates that the making of the path by the accused was in fact admitted. The relevant segment of her statement is in the following words:-- '
"It is incorrect to suggest that place of occurrence belongs to accused and owns about 90 Kanals of land in the vicinity and that the accused was removing the stones by which he had blocked the road." The suggestive question makes it clear that the defence admitted the factum of removal of stones from the place of occurrence but the ownership was claimed by the accused. Again a suggestion was denied by the same witness in the following diction:- "It is wrong to suggest that the path on which the occurrence took place was closed by my husband by putting the stones."
Thus the approach of the learned trial Judge to the factum of motive was wholly erroneous.
Without entering into the controversy about the ownership of the land we observe that the construction of path had generated the trouble culminating into the death of Hukam Dad.
8. The learned trial Court disbelieved the testimony of the eye= witnesses for the reason that Ali Asghar P.W., does not belong to the palce of occurrence and the claim of this witness about the hearing of noise in his house situated at a distance of about 450 paces which attracted him to the scene of occurrence was held impossible by the Court. Moreover, some strainity of relations of P.W.
Ali Asghar with the respondent was taken to define him as an interested witness. The testimony of P.W Khawas was disbelieved for the reasons that he being the maternal uncle of P.W. Ali. Asghar was also having animus towards the respondent, therefore, his testimony was also looked askance.
It may be mentioned that the soreness of relations of P.W. Ali Asghar with the respondent was the outcome of injuring the she-goat of Ali Asghar by the dogs of respondent. We believe that such kind of soreness of relations would not be sufficient to define a person as an interested witness so as to dismiss his testimony. However, even if such testimony is looked with any amount of scepticism then it shall remain confined to such witness and on this reason P.W. 6 cannot be brought within the domain of an interested witness. We may mention here that no suggestion of enmity was put to P.W Khawas. In the site plan the Investigating Officer has mentioned the house of P.W. Khawas which occupied point No,6 in the site plan and was shown at a distance of 200/250 paces although the word "Qadam" was subsequently interpolated by the word "Gazz", i,e,, yard. It is significant to highlight that the distances of all the points were described in the measurement of "Qadam" but points Nos. 6 and 7 have been interpolated by the word "yard". In context of the above distance the learned trial Judge considered it impossible for a witness to hear the noise of altercation between the deceased and Khawaj Muhammad that happened at the time of occurrence. We have noted that the evidence does not contain any suggestion having a tendency to show that on such a distance the hearing of altercation was an impossibility. The hearing of noise on such a distance is a relative phenomenon and depends upon the volume of voice and attention of the hearer. This being a hilly area obviously contains a calm and quiet atmosphere and we do not consider the hearing of the noise from such distance as an impossibility. All the three witnesses, i,e,, Mst.Nasim Jan, Khawas and Ali Asghar are meticulously consistent on the broad features of the occurrence. They are unanimous in saying that in their presence the deceased was thrown on the ground and was given "Gaintee" blows by the respondent resulting into causing fatal injuries to him. Since the law attaches great importance to the life and liberty of a citizen, therefore, by way of abundant caution even if we become sceptical to the testimony of P.W Ali Asghar on the ground of strainity of his relations with respondent again the prosecution is left with an unimpeachable ocular account of Mst. Nasim Jan widow of the deceased and Khawas Khan. The latter carries all the characteristics of an independent witness while the former being the wife of the deceased and residing at a distance of 20/25 paces from the place of occurrence is, without any slightest doubt, a natural witness on all standards. There is also no established evidence that the deceased had any enmity with some other person in the village who committed his murder and the respondent was made a scapegoat on the ground of suspicion or animosity.
Since P.W. Nasim Jan was present that is why within a reasonable time she made the report of the event and gave an elaborate and convincing account of the occurrence. She not only nominated the respondent as the sole accused but also gave the names of the witnesses in the F.I.R. There is no question of misidentification. The medical report squarely supports the prosecution version and injury No,4 was described as having the fatal effect on the life of the deceased. On the above discussion we have no reason to disbelieve the testimony of Mst. Nasim Jan and Khawas Khan which bears all appearances of truth and straightforwardness.
9. The learned trial Judge observed that there was no corroborative evidence in support of testimony of eye-witnesses. As has been contended by the learned counsel for the appellant the learned trial Judge was totally oblivious about the crime weapon and the F.S.L report being in positive. Had the learned trial Court been alive to this important corroborative piece of evidence and had taken the same into consideration probably he would have not taken it a case of uncorroborated testimony of the eye-witnesses. Corroboration of even an interested eye-witness would not mean the words of some other independent witness. Corroboration can be in the form of any circumstantial evidence which lends support to the testimony of the eye witnesses. We may also observe that it is not an inflexible rule that the testimony of an interested witness cannot be made basis of the conviction. There are cases where interested witnesses. Come forward with a true account of the event and their testimony if has the backing of corroborative evidence can be relied upon for the conviction of an accused person even on charge involving capital punishment.
10. On the view that we are taking of the instant case we find ourselves supported by the judgment of the Honourable Supreme Court rendered in "Nazir Hussain v. Muhammad Shafi" PLD 1965 S.C., page 188 and "Abdur Rashid v. Umeed Ali "PLD 1975 S.0 page 227 and also by a judgment of this Court delivered in "State v. Aminullah " PLD 1972 Peshawar 92.
11. We may also observe that the discrepancies alluded to by the learned trial Court are not that significant as to rob the afore mentioned eye witnesses of their credence. Seeking wisdom from the judgment given in Abdur Rashid's case (supra) we would also observe that some discrepancies inevitably are bound to occur on account of lapse of memory owning to the intervening period that elapsed between the day of occurrence and the recording of the evidence. The instant occurrence had taken place on 26-11-1995 whereas the statements of the eye witnesses were recorded on 19- 3-1997 and 10-12-1997. Borrowing the language from the judgment in the case of Abdur Rashid (supra) we may say that there have been cases where thoroughly drilled and well tutored witnesses after going through several rehearsals made statements which were almost verbatim repetitions of their police statements as well as those of each other at the trial and the Courts have been very rightly sceptical about such parrot-like reproductions. It is only the material discrepancies coming into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. Nothing of the kind is noticeable in the instant case.
12. It may be mentioned that the learned trial Court had ruled out from consideration the confessional statement of respondent as the Magistrate who had recorded the confessional statement was not examined in the trial Court. A Division Bench of this Court on 31-10-2003 while taking note of such lapse on the part of trial Court directed that in order to meet the ends of justice the said Magistrate be examined as C.W by the trial Court and if need be the Investigating Officer be also summoned and be examined by the defence on the question of confession. In compliance of the said order the leaned Magistrate Mr. Attaur Rehman was examined by the trial Court on 26- 2-2004. Subsequent to the recording of his statement respondent was also examined. He, however, termed the confessional statement as the outcome of torture. We have examined the statement of the learned Magistrate. We, however, do not feel safe to rely on the confessional statement while considering the cross-examination of the said witness. Moreover, it does not go parallel with the case of the prosecution as the respondent had stated that he had given blows to the deceased with a stone while the case of the prosecution is that of "Gaintee" blows. We, therefore, do not take into account the confessional statement.' However, even if it is taken out of consideration it would not have the effect of uprooting the case of prosecution.
13. In the ultimate analysis we are of the firm view that the prosecution has successfully proved its case against Khawaj Muhammad respondent on the charge of "Qatl-e-amd" of Hukam Dad. The finding3 and conclusions of the learned trial Court are, therefore, net tenable. In order to answer the argument of the learned counsel for the respondent that a mere possibility of an alternative view furnishes no ground to interfere with judgment of acquittal, we observe that had the prosecution evidence been appreciated in its true perspective and strictly in accordance with the principles laid down in the cited cases of Honourable Supreme Court then there was no possibility of drawing conclusion like the one drawn by the learned trial Court and it was a case of one view only, i,e,, to formulate the view speaking upon the guilt of the respondent.
14. Proceeding on the above statement of law and fact and on the evaluation of the evidence we have no option but to set aside the impugned judgment of the learned trial Court. We, therefore, hold the respondent guilty of the offence under section 302(b), P.P.0 and set aside the judgment of the learned lower Court.
15. Pursuant to what we held above the question that falls for consideration and has engaged our attention is the quantum of punishment that is to be awarded to the respondent. The Honourable Supreme Court in case of Nazir Hussain referred above on setting aside the judgment of acquittal and recording the conviction of the accused observed as follows:- "We, therefore, allow this appeal, set aside the acquittals of the first five respondents herein and convict them under sections 302/149 and 148 of the Pakistan Penal Code. But having regard to the fact that over three years have----elapsed since they were committed to trial, we do not impose the sentence of death. They are, accordingly, sentenced to transportation for life each under sections 302/149 and to two years' rigorous imprisonment each under section 148. Both the sentence will, however, run concurrently."
16. In the instant case this appeal was filed in November, 1999. The respondent at the time of recording his statement before the learned trial Court, i,e,, 8-9-1999, was of 57 years of age and by now is above 60 years. Thus keeping in mind the time that elapsed in between the filing of instant appeal and its decision on 1-4-2004 and the age of the respondent we feel that the punishment of death would not be proper and his imprisonment for life would serve the purpose of justice.
17. Consequently, we allow this appeal and on holding the respondent Khawaj Muhammad guilty under section 302 (b) P.P.0 we convict him accordingly and sentence him to imprisonment for life.
He shall also pay Rs,1,00,000 to the legal heirs of the deceased as compensation in terms of section 544-A, Cr.P.C., which shall be recoverable as arrears of land revenue, or in default of payment he shall suffer six months S.I. The benefit of section 382-B, Cr.P.C., is extended to the accused- respondent. He is present in Court and is taken into custody to be committed to jail to serve the sentence.