FAROOQ KHAN vs THE STATE

' MUHAMMAD AKHTAR SHABBIR, J.--- This criminal appeal by leave of the Court, is directed against the judgment, dated 18-4-2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby criminal appeal filed by the appellant against his conviction and sentence of death awarded to him (for committing the murder of Zahir Khan deceased) by the learned Additional Sessions Judge, Lahore, vide judgment, dated 20-4-2000, was dismissed. Hence, the appellant preferred Jail Petition No,246 of 2006 before this Court out of which the instant appeal has arisen.

2. Briefly stated the facts of the case, as narrated by complainant Namoos Khan (P.W.8) in the F.I.R.

(Exh.P.H./1), are to the effect that on 19-2-1995 at 8-00 a.m., on account of altercation between the complainant and Raza Khan accused 2/3 days ago, Aman Ullah Khan, Abdullah Khan, Raza Khan, Zahir Ullah Khan alias Zial Ullah Khan (all armed with iron rods) and Faroon Khan alias Muhammad Farooq (appellant) armed with a Chhuri came to the "Touri Tall" of the complainant where he was filling bags of Touri (chaff) along with his brother Zahir Khan (deceased) and Taj Muhammad. Raza Khan accused caught hold of Zahir Khan deceased while Faroon Khan alias Muhammad Farooq caused injury with his "Chhuri" on his person hitting him on the left side of his chest. The accused also caused injuries on the person of Taj Muhammad and the. Complainant Namoos Khan. Zahir Khan deceased succumbed to the injuries while on the way to hospital.

3. The prosecution to establish its case against the appellant produced as many as 10 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by complainant Namoos Khan (P.W.8). The medical evidence was furnished by Dr. Muhammad Maqsood (P.W.6) who conducted the post-mortem examination on the dead body of the deceased. P.W.9 Ghulam Rasool, Inspector/S.H.O. Was the Investigating Officer. The appellant when examined under section 342, Cr.P.C. Denied the prosecution story, pleaded not guilty and deposed as under:-- "The only witness P.W.8 had a minor quarrel with my cousin Raza Khan six months before the occurrence, this is why that he has falsely implicated him and I being cousin of Raza Khan was involved in this case. I along with others were nominated in the above case on the asking of the police to nominate some one although the case was of unseen occurrence during the night by some unknown persons."

4. The learned trial Court having found the case against the appellant proved beyond reasonable doubt, convicted him under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default whereof to undergo five years' S.I. The co-accused of the appellant were, however, acquitted of the charge.

5. Learned counsel for the appellant vehemently argued that the conviction of the appellant is based upon the solitary statement of P.W.8 who is an interested witness, and no other ocular account was furnished by the prosecution to support the solitary statement of P.W.B. He further contended that Muslim Khan nominated eye-witness who appeared as P.W.5 has not responded in positive for the prosecution. Taj Muhammad another injured witness (also real brother of the deceased and the complainant) did not appear to support the prosecution case neither any independent witness of recovery of weapon of offence has been produced.

6. While on the other hand, Mian Asif Mumtaz, D.P.G. Learned counsel for the respondent/State, vehemently opposed the arguments of the learned counsel for the appellant and supported the impugned judgment.

7. We have heard learned counsel for the parties and have perused the available record with their assistance. There is no denying the fact that it was a broad-daylight occurrence. The deceased, Zahir Khan along with his real brothers Taj Muhammad and Namoos Khan (complainant) was present at the "Touri Tall" filling bags of chaff where at 8-00 a.m. The petitioner armed with Chhuri along with his accompanied co-accused nominated in F.I.R. (all armed with iron bars) came there and caused injuries on the person of Zahir Khan deceased, Taj Muhammad P.W. And the complainant. Farooq Khan, appellant injured the deceased with Chhuri hitting him on the left side of his chest. The presence of the injured P.Ws. At the place of occurrence is intrinsic and could not be doubted because it was unchallenged. Statement of P.W.8 is consistent, straightforward and trustworth,y with no cogent reason in evidence to disbelieve the same.

8. The defence has also not doubted or challenged fhe injuries sustained by the injured P.W. In cross-examination. The injuries sustained by P.W.8 have been duly supported by medical evidence furnished by P.W.10 Dr. Humayun Khan who ruled out that the injuries on person of Namoos Khan P.W.8 were self-inflicting injuries.

9. As to the argument of learned counsel for the appellant that the solitary statement of injured P.W.8 was the basis of conviction, suffice it to observe that the injured prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of this witness has been supported by medical evidence furnished by Dr. Muhammad Maqsood P.W.6 who conducted post-mortem examination on the dead body of the deceased Zahir Khan. The evidence of injured witness is worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context reference can be made to Mali v. The State 1969 SCM R 76; Muhammad Ashraf v. The State 1971 SCM R 530, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCM R 659 and Muhammad Mansha v. The State 2001 SCM R 199. Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the "emphasis" is on quality of evidence, and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi PLD 1980 SC 225.

10. Having minutely examined the dictum as laid down in the above referred cases, the consensus of this Court seems to be that conviction can be awarded on the basis of solitary statement of witness being worthy of credence, dependable and consistent.

11. P.W.8 complainant is real brother of the deceased who is a F natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or has previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and G mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State PLD 1962 SC 269 and Shehruddin v. Allhaj Rakhio 1989 SCM R 1461. Further the ocular account of P.W.8 Namoos Khan finds support from the deposition of Dr. Muhammad Maqsood P.W.6 who conducted the post-mortem examination of the deceased which is in line with the statement of P.W.B.

12. The recovery of blood-stained earth secured through memo. (Exh.P.M.), report of Chemical Examiner and report of Serologist (Exh.P.Q.) further prove the prosecution story. No inference can be drawn in favour of the appellant on account of the statement made by Muslim Khan, P.W.5 who merely stated that he had no knowledge of the occurrence.

13. The prosecution witness has passed the test of lengthy cross-examination by the defence but no material discrepancies have been credited by the defence counsel in favour of the appellant.

The prosecution has been successful in establishing the guilt of the accused-appellant by producing ocular account, medical evidence, blood-stained earth and report of Chemical Examiner. The learned counsel for the appellant has failed to point out any legal infirmity in the impugned judgment calling for interference by this Court.

14. For the foregoing reasons, this appeal being devoid of any merit is dismissed.