2010 SCMR 1772 (PLP)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against judgment dated 26-4-2006 whereby the appeal preferred on behalf of appellant has been dismissed.

2. Leave granting order is reproduced herein below for ready reference:-

3. Precisely stated the "facts of the case as narrated in F.I.R. Exh.PG/ 1 are that on 10-7-1996 Zaman Shah-complainant along with his sons Muslim Shah, Zamin Khan and Aqal Shah-deceased were proceeding to Tibbi Sar. Aqal Shah was employed in the Army and he was on ten days' leave in those days. At about 6-00 a.m. when they reached near the Kholas of Shakar Deen, they saw Sheraz Khan-accused armed with .12-bore Gun, Noor Muhammad and Said Khan armed with rifles appeared there. Sheraz Khan-accused raised Lalkara and fired with his gun on Aqal Shah which hit him on the face. Aqal Shah fell on the ground. In the meanwhile, Said Khan and Noor Muhammad fired with their respective weapons on the complainant and P.Ws. but they escaped. Aqal Shah succumbed to the injuries at the spot." After completion of usual investigation the appellant along with Noor Muhammad and Said Khan were sent up for trial and on conclusion whereof the appellant was convicted under section 302(b), P.P.C. and sentenced to death with direction to pay compensation of Rs.1,00,000 (rupees one lac) to the legal heirs of deceased and in case of default further to suffer R.I. for six months. The co-accused namely Noor Muhammad and Said Khan were acquitted by extending benefit of doubt. Criminal appeal preferred on behalf of appellant has been dismissed and simultaneously the acquittal appeal was also dismissed by means of judgment impugned hence this appeal. It is to be noted that Criminal Petition for leave to Appeal No.462-L of 2006 was also filed by Sheraz Khan (appellant) which is also being disposed of by this judgment.

4. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court entered appearance on behalf of appellant and mainly contended that the prosecution has miserably failed to establish the guilt by producing cogent and concrete evidence which resulted in serious miscarriage of justice. In order to substantiate the said version it is contended that the eye-witnesses were related to the deceased and besides that they were chance witnesses and the incident was never witnessed by them which escaped the notice of learned Division Bench of High Court which caused serious prejudice against the appellant. It is next contended that certain serious contradictions which were brought to the notice of learned Division Bench have been ignored without any rhyme or reason on the basis whereof benefit of doubt could have been given to the appellant. It is also contended that the statement of Zaman Shah (P.W.7/complainant) should have been discarded as Noor Muhammad and Said Khan, co-accused were falsely implicated by him but acquitted by the learned trial court and thus his statement being vague and sketchy is not worthy of credence. It is also argued that the nature of motive being trivial should have conveniently been ignored and besides that no enmity existed between the parties and therefore, in view of the said circumstances which can be equated to that of mitigating circumstances, a lenient view can be taken by converting the sentence of death to that of life imprisonment as it would be in the interest of justice. In order to substantiate the plea of mitigating circumstances, it is submitted that only a single fire was attributed to the appellant which does constitute mitigation.

5. Syed Ali Imran Shah, learned Deputy Prosecutor-General entered appearance on behalf of State and vehemently controverted the view point as canvassed at Bar by Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the guilt to the hilt by producing forthright and confidence inspiring evidence. In this regard the learned Deputy Prosecutor-General has referred the statement of Zaman Shah (P.W.7/complainant) who was real father of the deceased and Muslim Shah (P.W.8) the real brother of deceased whose statements have rightly been appreciated in accordance with the settled norms of justice and no interference is called for. The learned Deputy Prosecutor-General has also pointed out that the ocular version has been supported by medical evidence and there is absolutely no conflict in between the oral version and medical evidence as pointed, out halfheartedly by Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court on behalf of appellant.

6. We have carefully examined the respective contentions as agitated on behalf of the appellant and for State in the light of relevant provisions of law and record of the case. The entire evidence and impugned judgment have been perused carefully with the eminent assistance of learned counsel on behalf of the parties. After having gone through the entire evidence in depth, we are of the considered view that prosecution has established the guilt to the hilt. Zaman Shah (P.W.7/complainant) is real father of the deceased who has highlighted the details of tragic incident and stood firm to the test of cross-examination. He was subjected to lengthy cross-examination but nothing advantageous could be extracted rendering any assistance to the case of appellant who was fully implicated by Zaman Shah (P.W.7/complainant). No serious enmity whatsoever was alleged against Zaman Shah (P.W.7/complainant) and besides that being real father, the question of substitution of the real culprit with that of Sheraz Khan (appellant) does not arise which otherwise is a rare phenomenon. The statement of Zaman Shah (P.W.7/complainant) has been corroborated by Muslim Shah (P.W.8) who is real brother of deceased. He was also subjected to an exhaustive cross-examination but in spite of various searching questions nothing advantageous could be extracted. As mentioned hereinabove, the real father and brother could not have substituted the real culprit with that of Sheraz Khan (appellant) as substitution is a rare phenomenon. Besides the forthright and confidence-inspiring eye account furnished by Zaman Shah (P.W.7/complainant) and Muslim Shah (P.W.8) duly , supported by medical evidence and motive cannot be brushed aside as suggested time and again merely on the ground of inter se relationship which hardly matters. A similar proposition was examined in case titled Iqbal v. The State (1994 SCMR 1) with the following observations:-- "An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. State PLD 1962 SC

269. In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmad v. State (1976 SCMR 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. State (1970 SCMR 734) the testimony of four P.Ws. out of which two had sustained injures was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws. proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Sherhruddin v. Allah Rakhia (1989 SCMR 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case Their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that "to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not".

7. On the touchstone of the criterion as mentioned herein above the statements of Zaman Shah (P. W.7/complainant) and Muslim Shah (P.W.8) have been thrashed out and we are of the considered opinion that reliance has rightly been placed on their statements being confidence inspiring by the learned trial and Appellate courts. It is worth-mentioning that Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court on behalf of appellant emphasizes on the serious contradictions which, according to him, escaped the notice of learned High Court but failed to point out any grave contradiction which was ignored by the learned trial or Appellate courts. It is worth-mentioning here that minor contradictions do creep in with the passage of time and can be safely ignored. We have carefully examined the medical evidence and no serious conflict could be found with that of ocular version as pointed out time and again by the learned Advocate Supreme Court on behalf of appellant. The defence version has been kept in juxtaposition to that of prosecution evidence. Sheraz Khan (appellant) has taken a specific plea that Muslim Shah (P.W.8) had relationship with the wife of deceased and committed the murder of Aqal Shah is hardly believable which otherwise could not be substantiated by producing any cogent and concrete evidence. It must be kept in view that mere a few suggestions does not mean that whatever has been suggested was true because suggestion cannot be equated to that of "proof".

8. In the light of what has been discussed hereinabove and in the absence of any mitigating circumstances the judgment impugned being well based does not warrant interference as the prosecution has established the guilt to the hilt by producing cogent and concrete evidence furnished by Zaman Shah (P.W.7/complainant) and Muslim Shah (P.W.8) who are eye-witnesses and their version finds corroboration by medical evidence, motive and being free from any inconsistency can be relied upon and conviction and sentence could have been awarded safely on the basis of such forthright evidence. In this regard following authorities can be referred:-- Iqbal alias Bhala v. State (1994 SCMR 1), Nazir v. State (PLD 1962 SC 269), Khalil Ahmed v. State (1976 SCMR 161), Allah Ditta v. State (1970 SCMR 734), Muhammad Akbar v. Muhammad Khan (PLD 1988 SC 274), Shehruddin v. Allah Rakhia (1989 SCMR 1461), Din Muhammad v. Crown (1969 SCMR 777).

9. In view of what has been discussed herein above the appeal as well as the petition being devoid of merits are dismissed. M.H./S-33/SC Appeal dismissed.