2007 PLP 1511 (MLD)

M. BILAL KHAN, J.

The appellant, namely, Akbar along with his father Nawaz, brothers Munawar, Zafarullah and Anwar had been tried by the learned Additional Sessions Judge, Sheikhupura, for the murder of Muhammad Hayat, brother of Muhammad Tufail-complainant in case F.LR. No. 460, dated. 8-12-1999, registered with Police Station Syedwala, District Sheikhupura for an offence under section 302/34 read with section 109, P.P.C. The learned trial Judge by virtue of his .judgment, dated 30-3-2002 found the appellant guilty of the said charge, convicted him under section 302(b), P.P.C. and sentenced him to undergo imprisonment for life with further direction to pay a sum of Rs.50,000 to .the legal heirs of the .deceased by way of compensation under section 544-A, Cr.P,C., or in default of payment thereof to further suffer simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was, however, accorded to him. The said learned Judge acquitted Nawaz, Munawar, Zafarullah and Anwar of the charge by giving them the benefit of doubt.

2. The convict/appellant by filing the instant appeal has approached this Court to call in question conviction and sentence passed against him by the learned trial Judge vide the impugned judgment, dated 30-3-2002, whereas the complainant by filing Criminal revision No. 107 of 2004 has sought enhancement in the sentence awarded to the appellant to the maximum. I propose to dispose of both these matters together through this single judgment.

3. The occurrence in the instant case had allegedly taken place on 8-12-1999 at 5-00 p.m. in village Kudlathi, situate at a distance of twelve miles from Police Station Syedwala, District Sheikhupura and the matter was reported by Muhammad Tufail complainant (P.W.9), brother of Muhammad Hayat deceased to Mujahid Abbas, Inspector/S.H.O. (P.W.11) on the same day at 7-00 p.m. at the Police Station, who as per his dictation drew up F.I.R. (Exh.PK) without any addition on his part.

4. The case of the prosecution as it unfurled in the F.I.R. (Exh.P.K.) was that Muhammad Tufail complainant (P.W.9) was resident of Pindi Cheri, Police Station Syedwala and ..was an agriculturalist by profession; his brother Muhammad Hayat, about 30/31 year-old, was practising as doctor in village Kudlathi in a shop situate adjacent to the house of Khan son of Shahadat Kumhar; on the fateful evening at 5-00 p.m. he and his brother Muhammad Hayat while sitting in the shop were busy in conversation with each other; suddenly, Akbar (appellant), armed with .12-bore gun, Munawar, carrying rifle and two unknown persons, one carrying gun and the other rifle, had arrived there; Munawar had exhorted a Lalkara that they be taught a lesson for refusing a proposal (Rishta), whereupon Akbar (appellant) had tired a shot through his gun hitting Muhammad Hayat on the back of his right shoulder; thereafter Munawar had made a shot through his rifle; on receipt of injuries, Muhammad Hayat had fallen down and breathed his last instantaneously; the commotion raised by the complainant had attracted Allah Ditta son of Khan Muhammad (P,W.10) and Noor Hassan son of Najabat, who had also witnessed the occurrence; the accused had fled from the scene while firing. The motive behind the occurrence according to the complainant was that sister of the accused was engaged with Muhammad Hayat, but the latter had refused to marry her, due to which the appellant along with his co-accused after having consulted one another and on the abetment of Muhammad Nawaz, Anwar and Zafarullah had committed the crime in question. Leaving Allah Dita and Noor Hassan P.Ws. to guard the dead-body of Muhammad Hayat, the complainant had left for the Police Station and got the aforesaid F.I.R. registered.

5. Immediately after registration of the case, investigation into the crime commenced. Mujahid Abbas, Inspector/S.H.O. (P.W.11) had proceeded to the venue of crime, inspected the dead-body of Muhammad Hayat, prepared its injury statement (Exh.PC), inquest report (Exh.PD) and had dispatched the same to the mortuary for autopsy under escort of Muhammad Anwar, (P.W.3) and Naseer Ahmad, constable (not produced); thereafter he had inspected the spot and had prepared rough site-plan thereof (Exh.PM); he collected blood-stained soil from the spot, made it into a sealed parcel and took the same into possession through memo (Exh.PL), duly attested by Allah Ditta (P.W.10) and Noor Hassan P.W. (not produced); on 9-12-1999, Muhammad Anwar, constable (P. W.3) had produced before him the last-worn clothes of the deceased i.e. shirt (P5), Shalwar (P6), vest (P7), sealed phial containing pellets (P8) and. postmortem report, which he secured through memo. Exh.PG; he had got prepared site-plan of the place of occurrence in duplicate (Exhs. PJ & PJ/1) from Muhammad Riaz, Draftsman (P.W.B); he had recorded statements of the relevant witnesses under section 161, Cr.P.C.; he made "hectic effors" to arrest the accused and became successful in arresting Akbar (appellant), Munawar accused on 19-1-2000 and Nawaz, Zafarullah and Anwar accused on 21-1-2000; thereafter the investigation was entrusted to Muhammad Afzaal, A.S.-I. (P.W.7), who had subjected the appellant and his co-accused Munawar to interrogation, during course of which, both of them had got recovered .12-bore gun (P1) along with five cartridges (P2/1-5) and rifle (P3) along with five bullets (P4/1-5) from their residential house, which were made into separate sealed parcels and taken into possession through memos (Exh. PE & PF), respectively, duly attested by Shahid Farooq (P.W.2) and Ghulam Abbas P.W. (not produced); he had recorded statements of the relevant witnesses under section 161, Cr.P.C.; he had handed over the case property to the Muharrir for its safe custody and onward transmission to the relevant quarters for analysis. After completion of investigation, challan was prepared against the appellant and his co-accused and submitted before the learned trial Court for their trial in accordance with law.

6. On receipt of challan, the learned trial Court after completing all the legal formalities had proceeded to frame charge against the appellant and his co-accused under section 302/34 read with section 109 P.P.C., which was put to them, to which they had pleaded not guilty and had claimed to be tried. Thereafter, the prosecution in order to prove its case had produced as many as eleven witnesses, namely, Dr. Muhammad Ijaz Ullah (P.W.1), Shahid Farooq (P.W.2), Muhammad Anwar (P.W.3), Rajab Ali (P.W:4), Ghulam Qadir (P.W.S), Muhammad Ali (P.W.6), Muhammad Afzaal, A.S.-I. (P.W.7), Muhammad Riaz Draftsman (P.W.8), Muhammad Tufail, complainant (P.W.9), Haji Allah Ditta (P.W.10) and Mujahid Abbas, Inspector/S.H.O. (P.W.11), out of whom the prominent ones were Dr. Muhammad Ijaz Ullah (P.W.1), Shahid Farooq (P.W.2), Ghulam Qadir (P.W.S), Muhammad Ali (P.W.6), Muhammad Afzaal, A.S.-I. (P.W.7), Muhammad Tufail, complainant (P.W.9), Haji Allah Ditta (P.W.10) and Mujahid Abbas, Inspector/S.H.O. (P.W.11), whereas evidence of rest of them was of formal nature. Dr. Muhammad Ijaz Ullah (P.W.1) had performed authopsy on the dead-body of Muhammad Hayat-deceased and had observed four fire-arm wounds on his person. According to him, death had occurred due to injury No.1, which was declared sufficient to cause death in the ordinary course of nature. Shahid Farooq (P.W.2) had appeared to testify to the factum of recovery of .12-bore gun (P1) at the instance of the appellant and rifle (P2) at the instance of Munawar (since acquitted). Ghulam Qadir and Muhammad Ali (P.Ws.5 & 6) were witnesses of conspiracy hatched out by Nawaz, Anwar and Zafarullah, co-accused of the appellant, whose evidence had not been believed by the learned trial Court and all the three accused of abetment had earned acquittal. Muhammad Tufail, complainant (P.W.9) and Haji Allah Ditta (P.W.10) are the alleged eye-witnesses of the occurrence. The former had reiterated the story of the F. I. R. and had supported the prosecution case, resulting in conviction of the appellant and acquittal of his co-accused. Muhammad Afzaal, A.S.-I. (P.W.7) and Mujahid Abbas, Inspector/S.H.O. (P.W.11) were the Investigating Officers of the case. They, had deposed about the duties performed and acts done by them during course of investigation as discussed above.

7. The learned prosecutor after tendering in evidence reports of the Chemical Examiner, Serologist and Forensic Science Laboratory (Exhs. PN, PO & PP), respectively had closed the prosecution case.

8. All the incriminating material was put to the appellant and his co-accused (since acquitted), when they had been examined under section 342, Cr. P. C. to seek their explanation with regard to the accusations brought against their and also to know their respective standpoint. They had proclaimed their absolute innocence in the matter. However, while answering the question "Why this case against you and why the P.Ws. deposed against you'? the appellant had stated as under:-- "The complainant has fabricated a false case against me. The complainant or his father Allah Ditta or Noor Hassan had not seen the occurrence. As a matter of fact, myself and my brother Munawar co-accused were engaged with Nusrat Bipi and Shahnaz Bibi the daughters of Allah Ditta P.W. respectively and in Watta my sisters Safia Bibi and Samina Bibi were engaged to Muhammad Hayat deceased and Muhammad Akram the sons of Allah Ditta P.W. These engagements had taken place in the childhood .Lot of ornaments and cloths etc. were exchanged at the time of engagements acid then on subsequent Eids which elapsed during many long years. When my sister Safia Bibi attained the puberty and became young of age by that time Muhammad Hayat deceased indulged in bad activities and developed illicit intimacy with different ladies of the village. A case of zinc was also registered against him. My sister Safia Bibi seeing the bad character of the deceased refused to marry him. Consequently all the engagements were broken. Allah Ditta etc. returned the ornaments and clothes to us but we did not return their ornaments and clothes as due to tubewell dispute they have to give us certain amount for which a dispute .was existed between us and Allah Ditta. Muhammad Hayat deceased was not a .qualified Doctor and was a quack. He used to give medicines "Kushta" etc. for sex to different people. In many cases, the operations were fatal and people for sex were not satisfied and there were disputes of many people with the deceased. Someone killed the deceased after sunset when he was present in his shop. No P.W. was present there. It was announced on the loudspeaker that Muhammad Hayat had been killed by some unknown persons. Allah Ditta, Noor Hassan, Muhammad Tufail, women folk and other people reached the place of occurrence Kudlathi. The dead-body was brought in the police station where it remained whole the night. After due deliberation and consultation, the present F.I.R. was fabricated with the assistance of Mir Muhammad, Advocate, the friend of the deceased I, all my brothers -and my father have been falsely involved in this case." The standpoint of the other co-accused of the appellant was almost the same. They did not opt to make statements on oath under section 340(2), Cr.P.C. in disproof of the allegations levelled against them. They did not produce defence evidence.

9. After conclusion of trial, the learned trial Court pronounced verdict of guilt against the appellant as aforementioned.

10. The learned counsel for the appellant in support of his plea for acquittal argued that it was an un-witnessed occurrence and the prosecution witnesses after due deliberation and consultation had cooked up the story to falsely involve the appellant in the blind murder of Muhammad Hayat deceased; that Muhammad Tufail complainant and Haji Allah Ditta (P.Ws.9 & 10), the alleged eye-witnesses of the occurrence, are closely related to the deceased being his brother and father, respectively and are thus interested witnesses; that the evidence furnished by them was not strong, trustworthy and confidence-inspiring; that as the prosecution witnesses h.ad failed to prove their case against co-accused of the appellant, namely, Munawar, Zafarullah, Anwar and Nawab who had been acquitted, therefore, it appears that presence of the eye-witnesses at the scene of occurrence is doubtful. He -has prayed for .acquittal of the appellant.

11. On the other hand, the learned counsel for the complainant as also the learned Assistant District Public Prosecutor for the State supported judgment of the learned trial Court. However, the learned counsel for the complainant prayed, for enhancement in sentence to the maximum by contending that the prosecution has fully proved its case to the extent of the appellant.

12. I have heard the learned counsel for the parties at considerable length and have also gone through the record as also the impugned judgment, dated 30-3-2002.

13. It has been observed that during trial Muhammad Tufail, complainant (P.W.9) and Allah Ditta (P.W.10) had furnished the ocular account. Muhammad Tufail (P.W.9) is a real brother of the deceased, whereas Allah Ditta (P.W.10) is father of the deceased. As far as Allah Ditta (P.W.10) is concerned, during cross-examination he had stated that when he reached the venue of occurrence, the accused had already sled away and his son Muhammad Hayat was lying in injured condition. On account of this answer, the learned trial Court did not rely upon his testimony, however, insofar as Muhammad Tufail (P.W.9) is concerned, he being the complainant of the case had furnished a detailed and meticulous account. He resolutely stuck to the version narrated by him in the F.I.R. He was subjected to a very lengthy cross-examination running into more than seven pages. However, no material discrepancy, which could be termed as being in conflict with natural probabilities so as to militate against .the credibility of the said witness, could be brought forth. He gave a consistent account of the occurrence and his integrity could not be shaken during the exhaustive cross-examination. His testimony cannot be discarded merely for the reason that he happened to be brother of the deceased. It is now well-settled that close relationship of prosecution witnesses with the deceased and even background of enmity between them did not justify rejection of their testimony, which is corroborated by confirmatory pieces of evidence, such as promptly lodged F.I.R., motive and the medical evidence. Reference can be made to the case of Muhammad Ilyas and 2 other v. The State (2002 SCMR 350). In the instant case, there is no allegation that the complainant party had any animosity with the appellant. In his statement under section 342, Cr.P.C, in reply to question No. 6 "Why this case against you and why the P.Ws. deposed against you'? he had in fact admitted the motive part of the prosecution story by stating that there was dispute between him 'and the complainant party regarding some tubewell, however, he did never elaborate as to what the dispute was nor did he produce any witness in order to substantiate his claim that there was a dispute regarding the tubewell. In the case of Haroon alias Harooni v. The State and another (1995 SCMR 1627), the Hon'ble Supreme Court of Pakistan held that if the statement of a witness ,was in consonance with the probabilities fitting in the circumstances of the case and also inspired confidence in the mind of reasonable prudent man, then the statement of the worst enemy of the accused may be accepted and relied upon without corroboration. In the absence of any enmity, there was no plausible reason for the complainant party to have substituted the appellant for the real culprit. It hardly needs any emphasis to state that there is a vast difference between material contradictions and variations in the evidence of eye-witnesses. All variations do not disturb the intrinsic value of the evidence of such a witness. The variations, which do not relate to material part of the prosecution story or the salient and important features of the case can be ignored. Case of Mushtaq alias Shama v. The State (PLD 1995 SC 46) can be quoted with an advantage.

14. It has time and again been held by the Superior Courts that no particular number of eye-witnesses is required to prove the prosecution story. Even solitary statement of a witness when appeared reliable and confidence inspiring is deemed sufficient for bringing home guilt of the accused. In the instant case, the evidence furnished by Muhammad Tufail (P.W.9) falls in the said category. The ocular account furnished by him has been corroborated by the medical report, motive and recovery of fire-arm from the appellant, which later on was confirmed by the Forensic Science Laboratory to be in working order. The argument of the learned counsel for the appellant that since Muhammad Nawaz, Anwar, Zafarullah and Munawar, co-accused of the appellant, had been acquitted, the appellant also merited the same treatment is absolutely devoid of any substance. This argument runs counter to the cherished principle of sifting the grain from the chaff. The finding of the learned trial Court has not been found to be suffering from any legal flaw, misreading or non-reading of material evidence. The testimony of Muhammad Tufail (P.W.9) as against the appellant cannot be discarded merely because co-accused of the appellant could not be convicted on the basis of such evidence. Reference may advantageously be made to the case of Asghar Beg v. The State (1999 SCMR 2438). In another case reported as The State v. Muhammad Sharif and 3 others (1995 SCMR 635), it was held by the Hon'ble apex Court that acquittal of certain accused on the extension of benefit of doubt did not necessarily mean that the eye-witnesses had either not seen the incident or that they had deliberately and falsely implicated the acquitted accused persons.

16. The upshot of the above discussion is that the appellant has rightly been convicted by the learned trial Court and there is no scope for interference in the impugned judgment. Accordingly, by maintaining conviction and sentence of the appellant, I dismiss this appeal.

17. Insofar as the award of lesser punishment is concerned, I am not inclined to interfere in the said discretion exercised by the learned trial Court, inasmuch as the reasoning given by it in awarding lesser sentence has not been found by this Court to be arbitrary or absurd. In the case of Falak Sher v. The State (1999 SCMR 2432), the Hon'ble Supreme Court of Pakistan had converted the death sentence into imprisonment for life, where prosecution version was found suffering from inconsistencies other than of a fatal character. Accordingly, Criminal Revision No. 107 of 2004 seeking enhancement in sentence of the appellant is hereby dismissed. N.H.Q./A-110/L Appeal dismissed.