2021 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

This judgment is directed against the judgment dated 9th April, 2019 (impugned judgment), passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali (trial court), whereby the appellant was convicted under section 302(b), Pakistan Penal Code (P.P.C.) and sentenced to suffer rigorous imprisonment for life as Tazir and to pay compensation of Rs. 200,000/-(Rupees two hundred thousand) separately to the legal heirs of deceased Abdul Ghafoor and Reshma Bibi as envisaged under section 544-A, Cr.P.C. and in default thereof to further undergo six months simple imprisonment with benefit of section 382-B, Cr.P.C.

2. The prosecution case as gleaned from the Fard-e-Biyan dated 10th March, 2018 (Ex: P/1-A) submitted by PW-1 Dad Muhammad son of Illahi Bakhsh, that on the said date the complainant along with his son Abdul Ghafoor, brother Dura Khan and relative Muhammad Ibrahim were irrigating their wheat crops. At about 12:10 p.m. Abdullah and Gulzar duly armed with TT pistols came there and made Lalkara to his son Abdul Ghafoor that he is Siakar with his wife Reshma and made firing upon Abdul Ghafoor due to which he died at the spot. It was further mentioned in Fard-e-Biyan that accused persons also made firing upon Reshma and killed her. With these allegations FIR No. 7 of 2018, under sections 302, 34, P.P.C. was registered with Police Station Aziz Bulo Shaheed Notal District Naseerabad on the same date.

3. After registration of FIR, the investigation was entrusted to Nasrullah SI, who visited the site prepared site plan Ex: P/7-B, secured blood stained earth, seven crime empties, also prepared inquest report of deceased vide Ex:P/7-C and Ex:P/7-D. During investigation the Investigating Officer took into possession blood stained cloths of deceased Abdul Ghafoor and Mst. Reshma vide Ex:P/2-A, obtained MLCs of deceased Mst. Reshma and Abdul Ghafoor vide Ex:P/4-A and Ex: P/5-A. On disclosure and pointation of accused got recovered TT pistol with magazine, sent the blood stained cloths, earth and crime empties to FSL, and obtained FSL reports vide Ex: P/7-F and on completion of investigation submitted challan to the learned trial court.

4. After submission of challan and legal formalities charge was framed to which the he denied and claimed trial. The prosecution in order to substantiate its charge produced following witnesses: PW-1 Dad Muhammad, complainant/eye-witness, PW-2 Muhammad Ibrahim ocular witness as well as recovery witness of blood stained cloths of deceased Abdul Ghafoor and Reshma, PW-3 Dura Khan, ocular witness, PW-4 Dr. Zahida Lady Medical Officer, who produced death certificate of Reshma as Ex: P/4-A, PW-5 Dr. Naseer Muhammad, Medical Officer, produced MLC of deceased Abdul Ghafoor vide Ex: P/5-A, PW-6 Muhammad Sachal Head Constable, recovery witness of blood stained earth, 7 crime empties, site inspection, disclosure and TT pistol with live rounds vide Ex: P/6-A to Ex: P/6-F, PW-7 Nasrullah SI is the Investigating Officer, who produced FIR as Ex: P/7-A, site map Ex: P/7-B, inquest reports Ex: P/7-C, Ex: P/7-D, challan Ex: P/7-E, FSL report Ex: P/7-F, challan Ex: P/7-G, challan Ex: P/7-H and FSL report of pistol and empties Ex: P/7-J and challan Ex: P/7- K.

5. On completion of prosecution evidence the appellant was examined under section 342, Cr.P.C. in which he denied the allegation. The appellant neither opted to record his statement on oath as envisaged under section 340(2), Cr.P.C, nor produced any witness in his defence.

6. On conclusion of the trial the learned trial court convicted the appellant in the terms as mentioned in para-1 above.

7. The learned counsel for the appellant contended that the impugned judgment passed by the learned trial court is contrary to facts and law, because the learned trial court failed to appreciate the evidence in its true perspective. The learned counsel further contended that the case of prosecution was doubtful. There were material contradictions in the statements of ocular witnesses and medical evidence, but the same were not considered by the learned trial court. The prosecution has badly failed to prove its case against the appellant on the basis whereof the appellant is entitled for acquittal.

8. The learned DPG strenuously opposed the contention of appellant and stated that the appellant is involved in Qatl-i-amd by committing murder of two innocent in broad day light. He added that the prosecution has proved its case against the appellant beyond shadow of reasonable doubt. The statements of the eye-witnesses are consistent on all material points. Medical evidence was unison with ocular account. The appellant has rightly been convicted and sentenced by the learned trial court. The learned counsel for the appellant failed to point out any illegality, misreading or non-reading of evidence, as such the appeal filed by the appellant is liable to be dismissed.

9. Heard learned counsel for the appellant and learned DPG. Perused the available record. The prosecution case hinges on the statement of complainant PW-1 Dad Muhammad, ocular account of PW-2 Muhammad Ibrahim, PW-3 Dura Khan and medico legal certificates. The complainant submitted application Ex: P/1-A for registration of FIR Ex: P/7-A, wherein he stated that on 10th March, 2018 he along with his son Abdul Ghafoor, brother Dura Khan and relative Muhammad Ibrahim were irrigating their wheat crops near their houses. At about 12:10 p.m. accused Abdullah and Gulzar duly armed with TT pistols came there, raised Lalkara to his son Abdul Ghafoor that he is Siakar with his wife Reshma, made firing upon Abdul Ghafoor, due to which he died at the spot.

10. PW-1 Dad Muhammad appeared before the trial court, reiterated the contents of application Ex: P/1-A. The statements of PW-2 Muhammad Ibrahim and PW-4 Dura Khan being eye-witnesses are in consonance with the statement of complainant. Despite lengthy cross-examination the defence failed to extract anything in his favour. The presence of ocular witnesses was not disputed. PW-3 is brother of complainant, while PW-2 is relative and brother of deceased Reshma. The defence has not denied that the deceased and witnesses were not irrigating their wheat crops. In these circumstances the presence of eye-witnesses at the place of occurrence is established beyond reasonable doubt. All the ocular witnesses have witnessed the incident and identified the appellant and co-accused with specific role of firing. The occurrence took place in broad day light. The parties were known to each other. There is no chance of mis-identification. Even the defence has not denied the occurrence. Reliance is placed on the case of Haleem v. The State 2019 PCr.LJ

247. It was held therein: "

10. Now diverting to the ocular evidence produced by the prosecution in shape of circumstantial and direct evidence. The case was registered on the complaint of one Hafiz Hassan son of Saleh Muhammad on the basis of fard-e-bayan Ex.P/1-A. wherein he has specifically nominated the accused Haleem for making firing upon them, which resulted into bullet injuries upon the person of deceased Hayat Khan, while a bullet hit on the wearing Kameez of the complainant. The fard-e-bayan Ex.P/1-A is silent with regard to playing any role either of the co-convict Ikram rather the absolute role of firing was attributed to the accused Haleem son of Ustad Zareef. However, the fact remains that during trial of the case the complainant died, hence his statement could not he recorded by the trial Court. However, the son of the complainant namely Muhammad Younas appeared as PW-5 in the trial Court. This witness narrated the whole story with regard to knocking the main door of their house, proceeding of the deceased Hayat Khan towards the main door for its opening and making firing upon them by the accused Haleem with Kalashnikov. This witness has correctly stated the date, time, the place of occurrence and the manner in which the alleged occurrence had taken place. The PW-5 has correctly identified the accused in the trial Court. Likewise. PW-1 Nasir is also the eye-witness of the occurrence being the nephew of deceased Hayat Khan. This witness fully corroborated the contents of fard-e-bayan, FIR as well as the statement of PW-5. This witness attributed the role of firing to appellant Haleem, while he has mentioned the presence of co-accused Ikram and absconding accused Ghaffar. PW-1 further brought on record that during firing of accused Haleem, a bullet also hit upon the Kameez of complainant Hafiz Hassan. This witness has also correctly narrated the date, time the place of occurrence and the manner of occurrence, while despite lengthy cross-examination he remained firm in his deposition."

11. The learned counsel for the appellant contended that the witnesses are related and interested witnesses. The same has no force. The testimony of related/interested witnesses cannot be discarded on the ground of mere relationship. Related witness is much competent witness as any other. There was no reason to falsely implicate the accused with the commission of offence. The defence has not put any suggestion in regard of false implication. It cannot appeal to reason that father and uncle could let free the actual culprit in the murder of his son and implicate innocent person. The statement of ocular witnesses is corroborated by medical evidence and recovery. Even there is no universal rule that the evidence of related witnesses must be corroborated by independent witnesses. Reliance is placed on the case of Roshan v. The State PLD 1977 SC 557, wherein it was held: "As regards the testimony of Mehdi and Raju, P.Ws there is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence, if that were so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where this court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness." In Niaz v. The State PLD 1960 SC 387, Kaikaus. J. observed: "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they came does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it." Similarly in Shihab Din v. The State PLD 1964 SC 177 Cornelius, C. J., observed: "The mere relationship of witnesses does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed." It appears that the ocular account furnished by the witnesses is consistent on material point. Despite lengthy cross-examination the witnesses remained firm. The defence failed to create contradictions in their testimony. The primary consideration is that the evidence given by the witnesses is to be determined why he has testified, whether he has seen the occurrence, has the witnesses a motive to implicate a person who was not culprit. In the case in hand the defence has failed to put forward any evidence in regard of false implication or falsely deposing. The witnesses stood firm in the test of cross-examination. Even the minor contradictions in the statements are not sufficient to discard the statements of eye-witnesses. Reference is made to the case of Khair Muhammad alias Khairo v. The State 2018 PCr.LJ 617 [Balochistan]. It was held: "So far as, contradictions in the statements of witnesses are concerned, the same being minor in nature are not sufficient to make the case of prosecution doubtful."

13. The complainant has lodged FIR promptly without any delay nominating the accused persons. The IO recorded the statements of witnesses under section 161, Cr.P.C. on the spot without any delay. The witnesses despite searching cross-examination remained firm on material point regarding date, venue of occurrence and time.

14. The learned counsel for the appellant contended that the recovery of pistol was foisted upon the appellant and sent to FSL with delay of one month, the same has no force. The recovery of crime weapon is not mandatory requirement of law. Same being circumstantial piece of evidence, merely tends corroboration to other piece of evidence. The defence of such corroborative evidence would have no direct impact upon the occular account. Reliance is placed on the case of Asadullah v. Muhammad Ali PLD 1971 SC 541.

15. The medical evidence confirmed the injuries fully supported the ocular account, thus we have hold that the ocular account was trustworthy and confidence inspiring which alone being sufficient to bring home the charge against the appellant. The defence has not disputed the above referred aspect of the case or disprove the same, nor suggest any ill-will malice and interestedness for his false implication. The delay in sending the articles to FSL shall not overweigh the ocular account supported by medical evidence. Reliance is placed on the case of Nizamuddin v. The State 2010 SCMR 1752. in which it was held: "

6. Coming to the question of delay in sending crime weapon and crime empties, admittedly, the crime empties were recovered on the day of incident and the crime weapon was recovered on 17-7-1996. It appears that the same were, however, sent to Chemical Examiner on 24-7-1996 with considerable delay but such delay shall not, in the facts and circumstances of this case, overweigh the ocular evidence found in line with and supported by the medical evidence." The cumulative effect of the above discussion brings us to irresistible conclusion that the prosecution has successfully proved the charge of murder against the appellant beyond any shadow of reasonable doubt. Therefore, the impugned judgment dated 9th April, 2019 passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali is upheld and the appeal being bereft of any merit is hereby dismissed. JK/14/Bal. Appeal dismissed.