P L D 2010 Supreme Court 669 (PLP)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against the judgment dated 15-10-2008 whereby the appellant has been convicted and sentenced by the learned Additional Sessions Judge, Bahawalpur by means of judgment dated 5-9-2001 as under: "(a) for offence under section 449, P.P.C. to undergo R.I. for five years and to pay a fine of Rs.10,000. (b) for offence under section 302(b), P.P.C. (for having caused the Qatl-e-Amd of Abdul Latif) to death plus payment of Rs.50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo further S.I. for one year; (c) for offence under section 324/34, P.P.C. (for having attempted to commit Qatl-e-Amd of Mst. Anwar Mai) to undergo R.I. for five years and to pay a fine of Rs.5,000 in default whereof to further suffer S.I. for six months; (d) for offence under section 324/34, P.P.C. (for having attempted to commit Qatl-e-Amd of Muhammad Shafiq) to undergo R.I for five years and to pay a fine of Rs.5,000 in default whereof to further suffer S.I. for six months; (e) for offence under section 324/34, P.P.C. (for having attempted to commit Qatl-e-Amd of Muhammad Akram) to undergo R.I. for five years and to pay a fine of Rs.5,000 in default whereof to further suffer S.I. for six months."

2. Being aggrieved an appeal was preferred which has been dismissed vide judgment impugned. Leave to appeal was granted by this Court vide order dated 18-5-2009 which is reproduced hereinbelow to appreciate the legal and factual aspects of the case: "In the occurrence that took place on 14-12-1999 at 7-00 p.m. Abdul Latif son of Muhammad Ali and Muhammad Yaqoob son of Bux Khan lost lives, the complainant Muhammad Ali lodged F.I.R. No.53 of 1999 with Police Station Cantt. Bahawalpur. Khadim Hussain petitioner and Muhammad Zafar accused were sent up for trial before the learned Additional Sessions Judge, Bahawalpur, who were charge-sheeted and both pleaded not guilty. On conduct and conclusion of trial the learned Trial Court convicted Khadim Hussain petitioner and sentenced him to death as Tazir, he was ordered to pay compensation of Rs.50,000 to the legal heirs of the deceased. He was also convicted for having committed other offences but acquitted Muhammad Zafar vide his judgment dated 5-9-2001. On Criminal Appeal and Murder Reference the learned Division Bench of the Lahore High Court, Bahawalpur Bench confirmed the death sentence of the petitioner and dismissed his appeal whereas appeal against acquittal of Muhammad Zafar was also dismissed vide order dated 13-11-2008. This is Jail Petition by Khadim Hussain.

2. The learned counsel for the petitioner has endeavourd to point out contradictions in the evidence produced by the prosecution to contend that the entire evidence needs reappraisal. After hearing the learned counsel for the petitioner and the learned Deputy Prosecutor General Punjab, we are inclined to grant leave to appeal to reappraise the entire evidence to ensure safe dispensation of justice. Order accordingly."

3. Mr. Aftab Ahmad Khan, learned Advocate Supreme Court entered appearance on behalf of appellant and urged with vehemence that prosecution has failed to establish the guilt beyond shadow of doubt and no convincing and concrete evidence could be led justifying the conviction and sentence of the appellant. In order to substantiate his contention it is submitted that a false and concocted case was got registered against the appellant and no independent witness could be produced to substantiate the allegation. It is argued that all the witnesses are related to the deceased and being interested witnesses their statements should have been discarded which aspect of the matter went unnoticed by the learned Division Bench bf the learned High Court which resulted in serious miscarriage of justice. It is submitted that on the basis of' statements of interested witnesses no conviction and sentences could have been awarded without having strong corroboration which is lacking in this case. It is contended that Nazim who is brother of the appellant was abducted by the complainant party who is still in illegal confinement which indicates the highhandedness of the complainant party. It is argued with vehemence that no firing whatsoever was made by the appellant and therefore, the question of commission of qatl-e-amd by him does not arise. The learned Advocate Supreme Court has also pointed out certain contradictions in the statements of prosecution witnesses which according to him should have been considered by the learned trial and appellate Courts but ignored without any rhyme or reason causing serious prejudice against the appellant.

4. Mr. Shahid Mehmood Abbasi, learned DPG entered appearance on behalf of State who controverted the view point as canvassed at bar by Mr. Aftab Ahmad Khan, learned Advocate Supreme Court for the appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that the statements of eye-witnesses being natural witnesses and inmates of the house have rightly been taken into consideration by the learned trial and appellate Courts. It is contended that ocular version furnished by the eye-witnesses has been supported by the medical evidence and besides that recovery of .222 bore rifle was also effected at the pointation of appellant which was used in the commission of alleged offence as affirmed by the positive report of FSL. It is also submitted that prosecution has proved the motive which can be taken as additional, supporting and corroboratory factor.

5. We have carefully examined the respective contentions as agitated on behalf of appellant and for the State, scrutinized the entire prosecution evidence by keeping the defence version in juxtaposition and perused the judgments of learned trial as well as the appellate Courts carefully. After having gone through the entire evidence we are of the view that prosecution has established the guilt to the hilt by producing forthright and convincing evidence. In this regard the statements of Muhammad Ali (P.W.3), Muhammad Sadiq (P.W.7), Muhammad Shafique (P.W.8) and Mst. Anwar Mai (P.W.11) can be referred. It is worth mentioning that incident was witnessed by the above named witnesses by whom specific role of firing has been attributed to Khadim Hussain who was armed with a rifle and fired at Abdul Latif, (deceased) and Muhammad Shafique and Mst. Anwar Mai who sustained injuries. In spite of lengthy and exhaustive cross-examination of the eye-witnesses nothing beneficial could be elicited rendering any help to the case of appellant. We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17. It is worth mentioning that two crime empties of .22.2 bore rifle were recovered from place of occurrence and the rifle used in the commission of alleged offence was got recovered at the pointation of appellant himself. The report of Firearm Expert (Exh.P.5) shows that the two crime empties recovered from the place of occurrence have been found to have been fired from .222 rifle. In view of medical evidence, factum of recovery and positive FSL report it cannot be said that ocular version has not been corroborated. It is worth mentioning that no enmity whatsoever was alleged against Muhammad Ali (P.W.3), Muhammad Sadiq (P.W.7), Muhammad Shafique (P.W.8) and Mst. Anwar Mai (P.W.11) and their statement being free from any ambiguity, exaggeration and dishonest omissions have rightly been taken into considering by the learned trial Court determination whereof has been upheld by the learned Division Bench of the High Court.

6. We heave also adverted to the contention of learned ASC that various contradictions in the statements of the prosecution witnesses have not been taken into consideration causing serious prejudice against the appellant. It has been held time and again by this Court that minor contradictions do creep in with the passage of time and can be ignored safely.

7. It is an admitted feature of the case that eye-witnesses were related to deceased but on this score their statements could not have been discarded. It is well-settled by now that merely on the basis of inter se relationship the statements of prosecution witnesses who stood firm to the test of cross-examination cannot be discarded especially when sufficient corroboratory material is available. It is to be noted that only for the safe dispensation of justice corroboration is necessary in certain given circumstances but the scope of this principle cannot be extended to the case of ancillary facts testified by the witness. (Riaz Hussain v. The State 2001 SCMR 177). It is the intrinsic value of the statements of prosecution witnesses which is to be examined and not the relationship. There is no cavil to the proposition that "in such like cases the Court is required to look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction and this is what is meant by saying that the statement of an interested witness ordinarily needs corroboration". In this regard reference can be made to case titled Riaz Hussain v. The State 2001 SCMR 177, Devi Prasad v. State AIR 1967 All. 64, Niaz v. State PLD 1960 (Pak.) 387, Nazir v. The State PLD 1962 SC

269. As mentioned hereinabove "friendship or relationship of a witness with the deceased is not sufficient to discredit him particularly when he has no motive to falsely involve the accused in a heinous offence like murder." In this regard reference can be made to cases titled Manawar Ali v. State 2001 SCMR 614, Muhammad Amin v. The State 2000 SCMR 1784, Iqbal alias Bhala v. State 1994 SCMR 1, Nazir v. The State PLD 1962 SC 269, Khalil Ahmad v. The State 1976 SCMR 161, Allah Ditta v. The State 1970 SCMR 734, Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274.

8. We have also examined with care and caution the defence version which is nothing but denial simpliciter on account of false involvement but no evidence could be led to show the nature of enmity which was never alleged. The appellant even did not record his statement on oath under section 340(2). Cr.P.C. Insofar as the plea of grave and sudden provocation is concerned that appears to be without any substance. It is well-entrenched legal proposition that before pressing into service the plea of grave and sudden provocation which is to be shown distinctly not only that the act was done under the influence of some feeling which had taken away from the accused all control over his actions but that feeling had an adequate cause which is lacking in this case. In this regard we are fortified by the dictum laid down in Muhammad Rafique v. State 1977 SCMR 457, Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37, Riaz Hussain v. State 2001 SCMR 177.

9. In the light of what has been discussed hereinabove we are of the view that prosecution has substantiated the guilt by producing worthy of credence and confidence inspiring evidence which has rightly been appreciated by the learned trial, and appellate Courts. The judgment impugned being free from any illegality or irregularity does not call for any interference. This appeal being devoid of merit is dismissed. N.H.Q. /K-7/S Appeal dismissed.