20061 PLP 163 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

Raqib Khan petitioner seeks leave to appeal against the judgment of Peshawar High Court, Peshawar, dated 2-2-1999 whereby Criminal Appeal No. 169 of 1996 filed by the petitioner against his conviction under section 302, P.P.C. and his sentence to imprisonment for life, payment of compensation amounting to Rs.30,000 to the legal heirs of the deceased or in default to undergo simple imprisonment for two years was dismissed. Benefit of section 382-B, Cr.P.C. was extended to the petitioner.

2. The allegations against the petitioner were that on 16-12-1994 at 12-15 hours, he had fired to death Haji Noor deceased in the cattle fair of Ahmad Abad where Mehmand Khan and Haji Hukam Zad P.Ws. and the deceased had gone to make purchases. It appears that on hearing the report of fire shots, the two police constables who were on petrol duty in the cattle fair rushed to the spot and after giving chase to the petitioner, succeeded in apprehending him alongwith crime weapon, namely, .32 bore pistol. On getting the information, the S.H.O. Gul Rais Khan (P.W.9) reached the spot who recorded the statement of Mehmand Khan (P.W.7) in the shape of Murasila Exh. P.A. on the spot and dispatched it to Police Station Latember, District Karak, for registration of the case. The motive for the occurrence is the old blood fued enmity between the parties.

4. Dr.Zafar Ullah (P.W.8) conducted autopsy on the dead body of the deceased Haji Noor Khan and found the following injuries on his person:-- "(1) 1/4" X 1/4" fire-arm entry wound over the right side of skull 3" above the right ear. (2) 1/4" X 1/4" fire-arm entry wound over the right side of skull 1" behind injury No. 1. (3) 1/4" X 1/4" fire-arm entry wound over the back of skull on right side 3" below and behind the right ear. (4) 1/4" X 1/4" fire-arm entry wound over the postero lateral surface of right side neck at the upper part."

5. After taking usual investigative steps and making recoveries, the petitioner was placed on trial before the learned Sessions Judge, Karak, on the charge of murder of Haji Noor Khan.

6. The prosecution examined nine witnesses including Hukam Zad (P.W.6) and Mehmand Khan (P.W.7) who furnished the ocular account of the occurrence; Azad Khan Constable (P.W.5) who alongwith Rast Ali, H.C. had heard the report of fire shot and were attracted to the spot. They claimed to have noticed the petitioner running away from the spot soon after the occurrence and was given chase by Azad Khan Constable (P.W.5) alongwith Rast Ali, H.C. and was apprehended at a distance of 180 paces from the spot alongwith the pistol of .32 bore; the recovery of the two empties from the spot, blood-stained earth and the last-worn clothes of the deceased which had been testified to by Hafizur Rehman Constable (P.WA).

7. The defence of the petitioner was bare denial of the prosecution allegations. He attributed his false implication to the blood fued enmity with the complainant party.

8. The learned trial Court, relying on the ocular evidence furnished by Hukam Zad (P.W.6) and Mehmand Khan (P.W.7); motive; medical evidence furnished by Dr. Zafarullah (P.W.8) and; corroborative evidence consisting of the statements of Azad Khan Constable (P.W.5) and that of Hafizur Rehman (P.W.4), convicted the petitioner under section 302, P.P.C. and sentenced him to imprisonment for life. He was also directed to pay compensation amounting to Rs.30,000 to the legal heirs of the deceased or in default to suffer simple imprisonment for six months. According to the learned trial Judge, the normal penalty of death was not awarded because of previous enmity which had resulted in the murder of the petitioner's father prior to the occurrence". The benefit of section 382-B, Cr.P.C. was, however, extended to the petitioner.

9. The learned Division Bench of the High Court, which was seized of the appeal, after thorough appraisal of evidence on the record in the shape of the ocular evidence; the evidence of Azad Khan F.C. (P.W.5) qua the apprehension of the petitioner alongwith the weapon of offence soon after the occurrence near the venue of the crime and the report of the Forensic Science Laboratory wherein the empties recovered from the spot had matched with the crime pistol which was snatched by Azad Khan, Constable and Rast Ali, H.C. P.Ws. and dismissed the appeal:

10. Mr. Muhammad Amin Khattak, learned Advocate Supreme Court representing the, petitioner, contended that the occurrence 'having taken place in broad daylight in a cattle fair, the prosecution had failed to produce disinterested witnesses and relied on the ocular evidence furnished by Hukam Zad (P.W.6) and Mehmand Khan (P.W.7) who were not only closely related to the deceased but were highly interested witnesses due to admitted blood fued enmity between the parties.

11. The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir Hussain v. State (PLD 1965 SC 188). In Aslam and another v. The State (1997 SCMR 1284), a Full Bench of this Court had reiterated the law on this score that "in the final 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 ultimately inherent worth of evidence of a witness that determines his reliability" in the instant case, we find that no doubt Hukam Zad (P.W.6) and Mehmand` Khan (P.W.7) were closely related to the deceased and may be they, were somehow interested witnesses but their testimony lends ample support from the, statement of Azad Khan Constable (P.W.5) that he and Rast Ali; H.C. had apprehended the petitioner alongwith the crime weapon. The report of the Forensic Science Laboratory further corroborates the testimony of the two eye-witnesses aforesaid empties recovered from the spot on examination had matched with the crime weapon. Both the eye-witnesses were, therefore, rightly held as worthy of reliance by the learned trial Judge as also by the learned Judges of the Division Bench. In the instant case, however, Azad Khan Constable is an independent witness who alongwith Rast Ali, H.C. had apprehended the petitioner with the weapon of offence from near the spot and had handed him over to the S.H.O. who had also reached the spot and had taken down the report lodged by the complainant.

12. In the light of what has been discussed above, we do not find any infirmity whatsoever in the impugned judgment. The conviction recorded against the petitioner in the circumstances of the case is unexceptionable. We had some reservations on the award of lesser sentence of life imprisonment for life to the petitioner on the ground of blood fued enmity between the parties. But neither complainant nor the State has assailed the propriety of sentence, therefore, we are not inclined to interfere with it.

3. No case is made out for interference. The petition is dismissed. N.H.Q./R-50/S Petition dismissed.