NOOR ZAMAN Versus State

GUL HASSAN TAREEN, J.--- Through this single judgment, we intend to decide Criminal Appeal No. 216/2022 (Noor Zaman v. The State) and Murder Reference No. 05/2022, submitted by the trial Court under section 374, the Criminal Procedure Code, 1898, ("Cr.P.C.") for confirmation or otherwise of death sentence awarded to the appellant, Noor Zaman, being originated from the same judgment dated 30th April, 2022 ("impugned judgment"), passed by the court of Sessions Judge, Sariab Division, Quetta ("trial Court"), in case FIR No. 193/2018, dated 30th November, 2018, under sections 302, 324, 147, 148 and 149, the Pakistan Penal Code, 1860 ("P.P.C"), registered at P.S. Abdul Khaliq Shaheed, District Quetta, for the murder of Suleman, whereby the appellant was convicted under section 302(b), P.P.C and sentenced to death with compensation of Rs. 500,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C, in default to pay, to further undergo six months.

Whereas the trial Court acquitted co-accused of the appellant Muhammad Siddique, while extending him benefit of doubt.

2. The prosecution case as unfolded in the Fard-e-Bayan

(Ex: P/1-A), lodged on the oral statement of complainant, Saeed Ahmed, (PW-1) is that; "today at about 01:00 p.m., on order of the Civil Judge, Sariab, Quetta, he, along with his sons Suleman, Siraj, Awais and local commissioner Shamsullah Achakzai, came to his land Rind Garh, Eastern Bypass. Meanwhile, Noor Zaman, Waheed Zaman, Rasheed Zaman sons of Sher Zaman, Caste Rind, who were also accompanied by Nasir Rind and Manzoor Rind sons of Saleh Muhammad, residents of Rind Garh, Muhammad Ayub and 4/5, unknown persons, who can be identified, if came before him, came armed over there and started abusing them. Meanwhile, his fellows started firing. Noor Rind standing near to his son Suleman, with Kalashnikov, fired a shot at his son which landed on his head, due to which, he succumbed at the spot and after murdering his son Suleman, they flee away from the scene of occurrence. The motive behind was that Noor Rind and his fellows belong to land mafia and intended to illegally occupy his ancestral land." On getting information of the incident, police arrived at the spot and taken over the dead body to the hospital. As a result of the said complaint, FIR No. 193/2018 dated 30th November, 2018 (Ex: P/10-A), under the aforementioned offences was lodged.

3. Amjad Mahmood S.I/Investigating Officer (PW-10), visited the place of occurrence on 30th November, 2018, sketched a rough site plan (Ex: P/10-B) secured empties and blood stained earth, in sealed parcel Nos. 1 and 2. He also took into possession the order of Civil Judge, Sariab regarding appointment of local commissioner, vide recovery memo (Ex:P/7-A), recorded statements of witnesses under section 161, Cr.P.C and took into possession a double door pick up vide recovery memo (Ex: P/7-D). On 10th January, 2019, investigation of the case was handed over to Khalid-ur-Rehman S.I, who handed over the file to SHO, who prepared challan under section 512, Cr.P.C (Ex: P/10-A). On 8th October, 2019, the appellant and co-accused Muhammad Siddique were apprehended and Muhammad Idress S.I. was entrusted investigation of the case, who prepared the disclosure memo of the appellant and recorded statements of the witnesses of disclosure memo, under section 161, Cr.P.C and conducted the identification parade of co-accused Muhammad Siddique in District Jail Quetta in the presence and supervision of Judicial Magistrate-IV, Quetta (PW-8). He procured death certificate of the deceased from Civil Hospital Quetta. After completion of investigation, incomplete report under section 173, Cr.P.C was sent to the trial Court.

4. On 04th February, 2020, the appellant and co-accused Muhammad Siddique were formally charge sheeted, to which they pleaded "Not Guilty" and claimed trial.

5. To substantiate the charges, the prosecution produced and examined as many as twelve witnesses. Ocular account was furnished by Saeed Ahmed Shahwani (PW-1) and his two sons Awais Ahmed (PW-2) and Siraj Saeed (PW-3), Shams-ud-Din Achakzai Advocate and Miss Humera Munir Ahmed, Advocate, appeared as PW-4 and PW-5 respectively and Dr. Ayesha Faiz (PW-6), whereas to the extent of the appellant, the remaining witnesses were of formal in nature. On completion of the prosecution evidence, accused were examined under section 342, Cr.P.C. They opted not to appear as witness in their defence in terms of section 340(2), Cr.P.C, however, through process of the trial Court, examined and produced, Ghulam Rasool Patwari and Ghulam Mohi-ud-Din Qanoongo as DW-1 and DW-2, respectively. On termination of trial, the appellant was held guilty, and therefore, convicted and sentenced in the above terms.

6. Sardar Muhammad Latif Khan Khosa, the learned Sr. A.S.C assisted by Mr. Syed Ayaz Zahoor, Sr. A.S.C, at the very outset contend that on same set of evidence, co-accused of the appellant viz, Muhammad Siddique, has been acquitted of the charge and when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath, the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken and referred to the maxim falsus in uno, falsus in omnibus and placed reliance on the case of Notice to Police Constable Khizar Hayat son of Hadayatullah, published in PLD 2019 SC 527; that the PW-1 being father whereas PW-2 and PW-3 being brothers of the deceased, were inimical towards the appellant because, despite of allegedly recovered 19 shells, from the spot, not a single injury was borne by them; that the local commissioner, PW-4 and his junior associate, PW-5, attributed the role of fire shot to the appellant whereas the name and presence of PW-5 were not mentioned in the FIR; that the prosecution gave up Ghulam Rasool Patwari and Ghulam Mohi-ud-Din Qanoongo without any explanation, he therefore, referred Article 129(g), the Qanun-e-Shahadat Order-10, 1984 ("Q.S.O"); that the given up witnesses were examined by the defence, who have disowned their 161, Cr.P.C statements, whereas the trial Court erroneously ruled out their testimony in violation of Article 140, of the Q.S.O; that FIR was not lodged at the Police Station, therefore, the possibility of fabrication in the prosecution story could not be ruled out, in support of his contention, he placed reliance on the cases of Arshad Khan v. The State 2017 SCMR 564, Sardar Bibi v. Munir Ahmed 2017 SCMR 344, Commissioner Inland Revenue FBR v. ICI Pakistan 2017 SCMR 1159, Nazeer Ahmed v. The State 2019 SCMR 594 and Atta Muhammad v. The State 1995 SCMR 599; that blood stained earth and 19 empties shells of SMG secured from the spot were of no use, when the prosecution had not produced the report of chemical examiner/serologist to prove that blood secured was of human origin and report of Forensic Science Laboratory to substantiate that the secured empties belong to which regime of firearm; that the author of the Murasilla (Ex:P/1-A), Manzoor Ahmed ASI and FIR (Ex: P/10-A) were not cited and examined by the prosecution as witnesses; that Dr. Ayesha Faiz (PW-6) admitted that she had not conducted the post mortem and also stated that the Medical Certificate Ex: P/6-A carries the date as 16th October, 2019, whereas the occurrence was of dated 30th November, 2018 and specification of injury is no ground for distinguishing the case of the appellant from that the acquitted co-accused Muhammad Siddique and others. He also referred to the cases of Rehmat and others v. The State PLD 1959 SC 109, Muhammad Aslam v. The State 1988 SCMR 940 and Atta Muhammad v. The State 1995 SCMR 599; that the confession attributed to the appellant by PW-9 Muhammad Dawood ASI is inadmissible under Articles 38 and 39 of the Q.S.O, whereas the absconsion and the backdrop of motive (civil suit) were not put to the appellant in his examination under section 342, Cr.P.C, as such; could not be considered as incriminating piece of evidence, whereas motive is otherwise a double edge weapon; that 10/11 accused persons were roped in the crime report for a single fire arm wound, shows how far the complainant seeks to browbeat the appellant; that according to prosecution, the appellant was standing closed to the deceased, however, the medical certificate does not refer to any tattoo marks and the empties were not secured from the place where the body of the deceased was shown lying as per site plan. Concluding arguments, they contend that benefit of doubt flows as of right and reliance is placed on the cases of Sajjad Hussain v. The State 2022 SCMR 1540, Muhammad Ashraf alias Nikka v. The State 2022 SCMR 1328, Sarwar v. The State 2020 SCMR 1250 and Imtiaz alias Taji v. State 2020 SCMR 287.

7. Conversely, Mr. Muhammad Ayub Tareen and Jameel Ahmed Babai, Advocates, representing the complainant, contend that the presence of the complainant, his two sons PW-2 and PW-3 and the independent witnesses, the local commissioner (PW-4) and his junior counsel (PW-5), has not been denied but merely presence of the appellant was denied at the scene of occurrence; that the FIR was promptly lodged, as such; the question of fabrication and deliberation did not arise at all, whereas substitution of real culprit is a rare phenomenon; that since death of the deceased and presence of PWs at the place of occurrence were not disputed, hence securing, the blood stained clothes or report of serologist would not make any difference; that DW-1 and DW-2 were not declared hostile by the defence and he referred Article 150, of the Q.S.O; that the appellant abused complainant which not only reflected his mens rea rather proved his conduct; that the oral account couldn't be brushed aside merely on the basis of errors crept into the site plan; that occurrence had taken place in broad day light within the sight of natural witnesses and specific role was attributed to the appellant, as such, the canon of falsus in uno, falsus in omnibus would not apply in this case; that mere acquittal of one co-accused of the appellant is not a ground to disbelieve prosecution case as a whole, hence, the appellant is not entitled for any leniency. Concluding arguments, they contend that pendency of civil suit is not a disputed fact and the prosecution has succeeded to establish its case beyond shadow of reasonable doubt and placed reliance on the cases of Syed Hamid Mukhtar Shah v. Azam and 2 others (2005 SCMR 427), Ijaz Ahmed v. The State (2009 SCMR 99), Altaf Hussain v. The State (2010 SCMR 1020) and Jawed Malik v. The State (2005 SCMR 49). The learned Deputy Prosecutor General adopted the arguments of the complainant's counsel.

8. We have heard both sides, perused the record and the case laws cited at bar by both sides.

9. The case of prosecution comprises upon, ocular evidence in the form of oral statements of PW-1 to PW-5 and circumstantial evidence in the form of medical evidence, absconsion, preparation of offence and motive. The prosecution examined PW-1, PW-2 and PW-3 as ocular evidence of the incident, whereas rest of the prosecution evidence is circumstantial in nature. In other words, it may be said that statements of PW-1 to PW-3 relate to fact in issue while the rest, to fact in issue and relevant facts. The fact in issue in this case is whether the appellant by his act of making fire shot had murdered the deceased? The brief from the examination of PW-1, PW-2 and PW-3 are reproduced hereunder:

PW-1 : On 30.11.2018, in pursuance of order of the Civil Judge Sariab, I along with my sons Suleman, Siraj, Awais were present on our land situated at Rind Garh, Eastern Bypass. Local Commissioner Shamsullah Achakzai was accompanied by us. Mean while, accused Noor Zaman, Waheed Zaman, Rasheed Zaman sons of Sher Zaman, caste Rind accompanied by Nasir Rind, Manzoor Rind sons of Saleh Muhammad and Muhammad Ayub and 4/5 armed unknown persons came over there and started abusing us while 4/5 unknown whom I can identify on coming before me. Thereafter, the accused opened firing. The accused Noor Rind present in Court was standing by my son Suleman. He murdered my son with Kalashnikov whom expired at the spot. They also made firing at us and made their escape good from the spot. The motive is that accused belongs to land mafia and used to occupy lands of other people and tried to occupy my land. Meanwhile, police reached and escorted corpus to the hospital"

Cross-examination:

Q. No. 30: It is incorrect that accused Noor Zaman was not present at the place of incident.

Q. No. 40: It is incorrect that we had fought with the persons of Rind Tribe and due to civil suit, I roped the accused Noor Zaman in this case.

PW-2 : On 30.11.2018 at 01:00 p.m., on order of the Civil Judge Sariab, I, accompanied by father Saeed Ahmed, brothers, Suleman Saeed and Siraj Saeed and local commissioner Shams-ud-Din Achakzai and his junior advocate, reached at our land Rind Garh, Sariab. Accused Noor Zaman, Rasheed Zaman, Waheed Zaman sons of Sher Zaman, Caste Rind accompanied by Nasir Rind, Manzoor Rind sons of Saleh Muhammad, Caste Rind, Muhammad Ayub and 4/5 unknown, whom I can identify on coming before me, came armed at the spot and started abusing us. Persons accompanied by them opened firing. The accused Noor Zaman was standing by my brother Suleman. He hit my brother Suleman on his head by the fire shot of Kalashnikov who expired at the spot. After murdering my brother, the accused made their escape good from the spot. The motive is that accused Noor Zaman and his all fellows belong to land mafia group and intended to forcibly occupy our ancestral property.

Cross-examination:

Q. No. 14: I did not disclose in my police statement that local commissioner Shams Achakzai was also accompanied by female advocate.

Q. No. 28: Our garments were stained with blood while shifting deceased Suleman to police mobile and the garments of my father, brother Siraj were stained with blood.

Q. No. 31: At the time of incident, I was at the distance of 2/3 feet from the deceased Suleman whereas father and Siraj were at the distance of 5/10 feet, respectively.

Q. No. 50: While making statements to police, we had not consulted each other.

Q. No. 52: It is incorrect that we fought with other persons of Rind Tribe and due to civil suit, we have roped accused in this case.

PW-3 : On 30.11.2018, on order of the Civil Judge, Sariab, I along with father Saeed, brothers Suleman, Awais, local commissioner Shams Achakzai Advocate and female junior advocate went to our land situated at Eastern Bypass Rind Garh. Accused Noor Zaman, Waheed Zaman, Rasheed Zaman sons of Sher Zaman, Caste Rind accompanied by Nasir Rind, Manzoor Rind sons of Saleh Muhammad Caste Rind, Muhammad Ayub and 4/5 unknown persons, whom I can identify on coming before me, came armed over there and as soon they reached, they abused us and opened firing at us. Accused Noor Zaman, standing by my brother Suleman, had fired a shot of Kalashnikov at the head of my brother Suleman. His other fellows also made firing at us and made their escape good from the spot. The motive is that Noor Zaman and his other companions belong to land mafia and were intended to illegally occupy our ancestral property.

Cross-examination :

"I cannot say that accused Noor Zaman has enmities."

The following facts are common in the statements of PW-1,

PW-2 and PW-3:

(i) presence of accused;

(ii) abusing with complainant's party;

(iii) arriving of accused at the scene of occurrence along with armed guards;

(iv) abusing to, and a quarrel, with the complainant at the scene of occurrence;

(v) firing made by the accused and his fellows;

(vi) death of complainant's son;

(vii) presence of complainant, PW-2 and PW-3;

(viii) dispute of land, pendency of civil suit and issuance of local commission; and

(ix) presence of local commissioner and his associate advocate

10. Let's take a closer look at the statements of local commissioner and his associate advocate. The relevant therefrom is reproduced hereunder:

PW-4:

Stated on oath that civil suit bearing title Saeed Ahmed Shahwani v. Noor Zaman Rind was pending in Civil Judge, Sariab. In the suit, I was appointed as a local commissioner by order of the court. I was directed to file report, after site inspection, in presence of parties. In this respect, on 30.11.2018, when I reached at the site, meanwhile, accused Noor Zaman came on the spot along with his guards and after hand shake, when he reached to the complainant Saeed Shahwani, he abused him in Brahvi (language) and both scuffled each other. I, the Patwari and others present on the site, tried to separate the fight so that the dispute do not spread out. After separating them, the son of complainant asked me to come with us, however, I refused. In the meanwhile, firing was started from the side of the accused. I ran to save my skin from the site. After a while, I came to know that, in result of the firing from the side of the accused(s), resulted into the death of complainant's son."

Cross-examination:

"3. According to my estimation, firing was made from the distance of 10/15 feet.

4. From 10/15 feet, I mean, firing from one edge of road and on the other edge, the deceased received bullet.

7. It is correct to suggest that while shaking hand, accused Noor Zaman was not armed.

8. It is correct to suggest that I cannot say, that whose bullet hit the deceased.

9. I did not, on my own see the accused Noor Zaman making firing, however, someone told me that accused Noor Zaman made firing after taking weapon from the guards.

13. It is correct that in 161's statement, it is not mentioned that accused made firing after taking the weapon from the guard.

15. I had stated in 161, Cr.P.C statement that accused Noor Zaman came, shake hand with all and abused Saeed Shahwani (confronted not so recorded).

17. On the site, my junior associate, Humera Advocate was standing beside me.

23. Police has recorded my statement in accordance with mine, however, only it was not written that accused Noor Zaman made firing by taking weapon from the guard.

PW-5:

Stated on oath that I am advocate and junior with Shams-ud-Din Advocate. The civil court of Sariab had appointed Shams-ud-Din Advocate as local commissioner in the case of Saeed Ahmed v. Noor Ahmed. On 30.11.2018, I along with Shams-ud-Din Advocate, parties and Halqa Patwari etc went to Rind Garh, Eastern Bypass. Meanwhile, Noor Zaman in company of his guards, came and as soon he came, abused the complainant, collared him and both got into a fight. We separated both. The accused Noor Zaman by crossing the road took Kalashnikov from his gunman, and opened fire. We ran to safe our skin and latter I came to know, one met to die by firing. I identify accused Noor Zaman.

Cross-examination:

"2. It is correct to suggest that I was not local commissioner in the civil suit.

6. I had stated in police statement that other people also opened firing.

7. It is correct that I cannot say that whose bullet hit whom.

11. I stated to police in statement that I separated the parties (confronted, recorded so).

18. It is incorrect that Shahwani and Rind Tribes had fought and accused Noor Zaman has wrongly been roped.

Following facts emerge from the statements of PW-4 and PW-5:

(i) arriving of accused at the scene of occurrence with gunmen;

(ii) abused complainant;

(iii) quarrel with complainant;

(iv) accused opened fire;

(v) death of complainant's son;

(vi) presence of sons of complainant;

(vii) pendency of civil suit, appointment of local commission and presence of PW-1 to PW-5.

The PWs were cross-examined at length but their credence or veracity could not be shattered by the accused/ defence. The accused was defendant and the complainant was plaintiff, in the suit. Issuance of local commission has not been disputed, therefore, presence of complainant, his sons, local commissioner and his junior associate, cannot be disputed, however, presence of the appellant was proved by the prosecution through statements of PW-1 to PW-3 and two independent witnesses, PW-4 and PW-5. The PW-2 and PW-3 deposed in line with the statement of their father PW-1.

Dr. Ayesha Faiz, Police Surgeon conducted medical examination of deceased Suleman and found the following injuries on his body: i. Entrance wound 2 x 2 c.m. at left temporal region of skull. ii. Exist wound 3 x 3 c.m. right side occipital region of skull. iii. Brain was out

In her opinion, probable cause of death of the deceased was damage of vital organs of (skull) caused by fire arm and homicidal in manner.

11. On 21st April, 2021, the prosecution made an application to the trial Court for giving up two witnesses Ghulam Rasool and Mohi-ud-Din. The application was contested by the accused, however, on 17th July, 2021, the trial Court allowed the application. They were examined by the accused as DW-1 and DW-2. They deposed as under:

DW-1:

On 27.11.2018, the Tehsildar City, received a murasilla from the court. The Tehsildar directed me and the Qanoongo Mohi-ud-Din, to visit and inspect the site along with local commissioner Shams-ud-Din Achakzai. On 30.11.2018 at 12:00 noon, I and Qanoongo, Mohi-ud-Din reached at the spot where the party of Saeed Shahwani and local commissioner were already present. When we unfolded the record, the parties' lawyers also came at the site. We unfolded the record, at then, Noor Zaman and Saeed Ahmed indulge into a scuffle. Qanoongo Mohi-ud-Din directed me secure the record safely in the car. I along with Qanoongo and two helpers put the record into the car and departed. When we proceeded 2/3 hundred paces, we heard the noise of firing. I recorded the same statement to police which I deposed in court."

He was cross-examined by the accused as well as by the prosecution, the relevant is reproduced hereunder:

"2. I had not mentioned in my police statement under section 161, Cr.P.C that meanwhile the party of Noor Zaman opened firing (confronted and found recorded in the statement under section 161, Cr.P.C).

3. It is not correct that I had stated in my statement under section 161, Cr.P.C that Noor Zaman Rind's party opened fire (confronted and fond recorded in the statement under section 161, Cr.P.C)

Cross-examination by prosecution:

5. It is correct that I had not mentioned the presence of helper Ishaq Agha and Mohibullah at the site, in the statement under section 161, Cr.P.C.

9. It is not correct that I had mentioned this fact in statement under section 161, Cr.P.C that Noor Rind's party started firing at Saeed and his son (examined, recorded as such).

11. It is not correct that I have concealed actual facts from the court with the connivance of accused Noor Zaman.

DW-2:

"On 27.11.2018 from Tehsildar City, I received a murasilla for site inspection. On 30.11.2018, I along with Ghulam Rasool Patwari and two other helpers Ishaq Agha and Mohibullah proceeded to the site. We reached at the inspection site Takhtani, where Saeed Ahmed Shahwani and local commissioner Shams-ud-Din Achakzai were already present. We took out the relevant revenue record and meanwhile, the counsel of other party also reached at the site and thereafter Noor Zaman also arrived at the site in a car. At then, hot words were exchanged between Noor Zaman and Saeed Ahmed Shahwani. I told my Patwari and other helpers, to take the record and put it in the car and we left. After leaving, at about 3/4 paces we heard firing."

He was also cross-examined by the accused as well as by the prosecution.

"3. I on my own, had not seen anyone, making firing or anyone receiving bullet injury.

Cross-examination by the prosecution:

5. I had not mentioned the presence of helpers Ishaq Agha and Mohibullah in statement under section 161, Cr.P.C.

6. It is not correct that I had stated in statement under section 161, Cr.P.C that Noor Zaman Rind and his party opened fire at Saeed Ahmed and his son and the son of Saeed Ahmed Shahwani died due to receiving bullet of firing (confronted and found recorded in statement under section 161, Cr.P.C). Voluntarily stated, I made the same statement to the police which I deposed today in the court.

11. On the same day, I came to know that son of Saeed Ahmed was martyred on the spot by firing.

13. It is not correct that today I deposed in the court, contrary to the facts, with the connivance of accused."

12. The appreciation of the statements of prosecution witnesses and defence transpires that accused and complainant Saeed Ahmed were known to each other and there was a suit pending between them on the land whereupon, the incident took place. The accused was defendant in the civil suit instituted by the complainant. The suit was pending in the court of Civil Judge, Sariab. The Civil Court issued a commission for the site inspection and appointed Mr. Shams-ud-Din Achakzai Advocate. The pendency of suit and issuance of commission, presence of local commissioner, the revenue staff, were not disputed or denied. The local commissioner and his junior advocate were independent witnesses and deposed about the presence of complainant, his sons, accused along with his armed guards at the scene of occurrence. Even the witnesses, examined by the accused in his defence as DW-1 and DW-2 deposed that accused arrived at the place of occurrence, where the accused and the complainant indulged into scuffle with each other. DW-1 and DW-2 were duly confronted with specific portions of their 161, Cr.P.C statements recorded by the prosecution. Both DWs in their 161, Cr.P.C statements, attributed role of firing to the appellant and his fellows and the death of the complainant's son due to the fire shot of the appellant. The DW-1 and DW-2 were not declared hostile by the defence. They proved the presence of appellant at the place of incident. They were confronted by the prosecution with their statements recorded under section 161, Cr.P.C, but they could not justify their inconsistent statements, made in the court. The appellant had raised plea that on the day of incident a strife or violent dissension took place between the tribesmen of Shahwani and Rind, in which the complainant's son was died and accused was nominated due to pendency of a civil litigation. The appellant had also raised plea that he was not present at the scene of occurrence but he could not lead any evidence in support of such plea, even he had not deposed on oath in terms of section 340(2), Cr.P.C. He had not examined any member from the tribe of Rind as DW, for proving his absence from the place of incident. Rather the DW-1 and DW-2 in their depositions specifically mentioned the presence of the accused at the place of occurrence. Though, the PW-1 is the father of the deceased and PW-2 and PW-3 are brothers of the deceased, however mere fact that since they were related to deceased, as such falsely roped the accused in the case, is not of legal significance as substitution is a real phenomenon. As has been mentioned above, nothing could be brought on record to indicate any reason on the part of PWs for absolving the actual culprits and instead implicating the appellant in the crime in question. The cross-examination of PW-2 and PW-3 does not suggest that they were not present at site along with their father (PW-1). PW-1, PW-2 and PW-3 specifically figured the position of accused beside the deceased at the scene of occurrence. The eye-witness account by Siraj Saeed (PW-3) got necessary corroboration from medical certificate (Ex: P/6-A) and entry register (Ex: P/6-AA) which proved that the dead body of deceased was brought in Hospital by Manzoor A.S.I and Siraj Ahmed. The Ex: P/6-A and Ex: P/6-AA tendered in evidence by the Dr. Ayesha Faiz (PW-6) are public documents within the purview of Article 85, of the Q.S.O and made by a public servant in the discharge of her official duty, as such, are relevant in evidence, under Article 49, the Q.S.O. Arriving along with the guards at the scene of occurrence has also been established by the prosecution through statements of PW-4 and PW-5 as well. Though the PW-4 has not himself seen the accused while making fire shot at the deceased, however, his statement is also relevant on the principle of Res gestea as envisaged by Article 19, of the Q.S.O. The incident took place in broad day light, therefore, the question of mistaken identity also did not arise. The pendency of civil suit and motive was put, by the trial Court, to the appellant under section 342, Cr.P.C (Q. No. 8). The complainant not only alleged motive, rather proved it through evidence i.e. pendency of suit and appellant's intention to occupy the land. The evidence of motive also corroborated the testimony of PW-1, PW-2 and PW-3. The medical evidence is another piece of evidence which corroborated the statements of PW-1, PW-2 and PW-3. The motive is relevant under Article 21(1), of the Q.S.O, as an incriminating piece of evidence. Arriving in the company of armed guards at the scene of occurrence, shows the preparation of the appellant for the commission of offence. Any fact which shows preparation for any fact in issue and relevant fact, has been declared relevant under Article 21(1), of the Q.S.O, which is another piece of corroborative evidence. The PW-4 and PW-5 also corroborated ocular account of PW-1, PW-2 and PW-3.

13. Though there was absconsion of the appellant which is likewise a corroborative piece of evidence, however, the trial Court has not put it as an incriminating piece of evidence to the appellant in his examination under section 342, Cr.P.C. While, the trial Court has not placed reliance on the absconsion of the appellant while awarding him death sentence.

Since there was overwhelming evidence in the form of direct ocular evidence corroborated by the evidences of motive and medical certificate, entry register and preparation, therefore, non-existence of the report of ballistic experts and serologist would not cast any shadow of doubt on the eye-witness account of the incident furnished by the PWs.

The contention of the appellant's counsel that the authors of the murasilla and FIR were not cited as witnesses, is not of any significance because the prosecution has succeeded to substantiate the charge of Qatl-i-amd against the appellant by producing direct and circumstantial evidence.

The statement of PW-5, Ms. Humera Munir Advocate was recorded promptly under section 161, Cr.P.C, therefore, by not mentioning her name by the complainant in his Fard-e-Bayan does not cast a shadow of doubt on her presence at the scene of occurrence particularly when she stood to the test of cross-examination.

When prosecution succeeds to prove guilt of an accused in relation to Qatl-i-amd, then normal penalty under section 302(b), P.P.C. is death. We have scanned the record of the case, but could not find any mitigating circumstances in the case justifying conversion of death sentence into lesser sentence of life imprisonment. The trial Court has discussed each and every aspect of the case and reached to the right conclusion. The appellant came over the place of incident with armed guards, and as soon he came, abused complainant, therefore, possibility of sudden provocation developed at the spur of the moment also does not arise and is ruled out.

14. The site plan is not a substantive piece of evidence to be used to contradict or counter the ocular account and cannot be given preference over the direct evidence of the eye-witnesses . Reference may be given to the cases of Abdul Rauf v. The State (2003 SCMR 522) and Sardar Khan v. The State (1998 SCMR 1823). Mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his (their) evidence describing him (them) as (an) interested witness. Reliance is placed on the case of Sardar Khan and 3 others v. The State (1998 SCMR 1823), Muhammad Ali v. Muhammad Yaqoob and 3 others (1998 SCMR 1814) and Iqbal alias Bhala and 2 others v. The State (1994 SCMR 1) and Ijaz Ahmed v. The State (2009 SCMR 99).

15. The case laws cited at bar by the appellant's counsel are not relevant to the facts and circumstances of the instant case. There is no cavil with the proposition laid down by the Hon'ble Supreme Court of Pakistan in the case of Notice to Police Constable Khizar Hayat, reported in PLD 2019 SC 527, however, the maxim "falsus in uno falsus in omnibus" is not applicable in this case because the prosecution had not attributed common role of fire shot at the deceased to the appellant and the acquitted accused Muhammad Siddique. Role of firing at the deceased was solely attributed to the appellant, as such, there is not a same set of evidence against the appellant and the acquitted co-accused Muhammad Siddique, hence reliance on the said maxim is not well founded. The Rehmat's case is not relevant as in the said case, the Hon'ble Supreme Court had held that "conviction of accused relying on rule of "specific part" assigned to some of several accused by eye-witnesses , not consistent with safe administration of justice." Whereas in this case, role of fire shot on the head of the deceased was not attributed to the several accused but only to the appellant. In the case of Muhammad Aslam and others, eye-witnesses were not found reliable and despite their testimony, eight out of twelve accused were acquitted. In the said case, occurrence took place when complainant party wanted to forcibly take possession of a piece of shamilat land. In Atta Muhammad's case, there was criminal litigation between the parties and the eight acquitted accused persons were clearly related interse and were members of one-family and the criminal litigation was between the eye-witnesses and the accused. Whereas in the cases of Arshad Khan, Sardar Bibi, Muhammad Imran and Imtiaz, the incident took place in odd hours of the night. In the case of Muhammad Akram, FIR was lodged with the delay of six months of the abduction and recovery of the detenue. In the case of Nadeem alias Kala, there was unexplained delay of three days after the occurrence despite the fact that distance between the place of occurrence and the police station was just one kilometer. In the case of Muhammad Nawaz, there was a delay of a month in lodging FIR. There is no cavil with the propositions settled down by the Hon'ble Supreme Court of Pakistan in the referred case laws, however, the facts of said cases are entirely different. The counsel for the appellant could not point out any such patent illegality, which may persuade us to interfere in the well reasoned judgment, which has been passed after due application of judicial mind.

We have gone through the case laws cited by the counsel for the complainant. In the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427), the Hon'ble Supreme Court of Pakistan has held:

"6. It was through a judgment delivered in the case of Saeed Akhtar and others v. The State reported as 2000 SCMR 383 that this Court had declared that insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment. This view has been consistently followed by this Court ever since. In the case of Arshad Ali alias Achhu v. The State reported as 2002 SCMR 1806 it was held that even where the occurrence resulting in a murder had taken place at the spur of the moment and even where only one shot had been fired and same had not been repeated, the only penalty deserved by the killer was the normal punishment of death prescribed for the said offence. This Court reiterated in Hameed Khan's case reported as 2002 SCMR 1155 that inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such-like circumstances would be the sentence of death.

9. Needless to add that in a case where a fire-arm is aimed at the chest of the victim and causes fatal injuries on the said vital area then non-repetition of the said act is hardly of any consequence in the matter of determining the quantum of punishment deserved by the assailant.

10. Having thus examined all aspects of the matter vis-a-vis the quantum of punishment which was the only issue before us with respect to Azam respondent, we find that the impugned judgment of the learned High Court to the said extent could not be sustained and we hold accordingly.

11. Consequently, this petition is converted into an appeal, to the said extent and is allowed. The decision of the learned High Court directing reduction of sentence of death awarded to Azam respondent to a punishment of imprisonment for life is set aside and the said respondent is awarded a sentence of death under section 302(b), P.P.C. as ordered by the learned trial Judge through his judgment, dated 10-12-1997."

In the case of Ijaz Ahmed v. The State (2009 SCMR 99), the Hon'ble Supreme Court has held:

"In the instant case both P.Ws. 1 and 2 being father and mother were natural witnesses and therefore, their presence in the house, at the relevant time, was rightly believed by both the Courts below. The contention, therefore, has no force.

10. As to the next contention that since on the basis of same evidence, co-accused persons, namely, Asif Hussain, Rafaqat Ali and Wajid Hussain were acquitted of the charge, therefore, the appellant could not have been convicted for the offence, it may be mentioned here that no doubt aforementioned accused persons were acquitted of the charge, by the trial Court, for want of proof, yet, it cannot be said that the appellant was convicted on the basis of same evidence, because both the afore mentioned eye-witnesses had, at the trial, categorically stated that though they had charged Rafaqat Ali for inflicting Chhuri blow to the deceased yet, they were not sure as to whether it actually hit the deceased or otherwise and no overt act whatsoever was attributed to the third accused, namely, Wajid Hussain. On the contrary the present appellant was specifically charged by them for inflicting gun shot injuries to the deceased therefore, it can, by no stretch of imagination, be said that on the basis of same evidence the co-accused persons were acquitted. This, contention therefore, is devoid of force."

In the case of Altaf Hussain v. The State (2010 SCMR 1020), the Hon'ble Supreme Court has held:

"9. We have carefully considered the submissions of the learned counsel, and, with their assistance, carefully perused the case record. Indeed the two eye-witnesses of the occurrence, when in the witness box, attempted to make some improvements in their case, but it was only relating to the role of co-accused Muhammad Aslam and Alam Sher, who, by extending them the benefit of doubt, have already been acquitted by the trial Court. In so far as the role of present appellant Altaf Hussain is concerned, it was specifically stated in the FIR that both the fatal injuries to the deceased Abdul Rasheed were caused by him, when he took out the Chhuri from the fold of his Shalwar and did so in presence of several persons, including the P.Ws. Abdul Majeed and Zafar Iqbal, while third witness of the occurrence i.e. Nazar Hussain was given up by the prosecution. From a careful reading of the deposition of the two eye-witnesses, who were subjected to lengthy cross-examination by the learned defence counsel before the trial Court, it is evident that they remained un-shattered in cross-examination and deposed about the whole occurrence in a confidence inspiring manner.

10. In such circumstances, mere non-prove or weakness of motive of occurrence was not enough to dislodge the case of prosecution, which was otherwise proved beyond reasonable doubt. The appellant in his section 342, Cr.P.C. statement, had taken the defence of a quarrel between the two rival groups, but he did not bother to examine even a single witness in his defence, though as per his suggestion such quarrel had taken place between a number of persons from the rival groups. In such circumstances, when the appellant failed to substantiate his plea in defence, the grievance against the trial Court and the Appellate Court in this regard, is without substance:

11. After overall assessment of the evidence brought on record by the prosecution, we are of the opinion that the evidence of two witnesses of the occurrence is natural, firm, free from material contradiction, and confidence inspiring. Based on such evidence, conviction awarded to the appellant by the trial Court, as maintained by the High Court in its impugned judgment is, therefore, fully justified.

In the case of Jawed Malik v. The State (2005 SCMR 49), the Hon'ble Supreme Court has held:

"9. The judgment of the learned Judge, who modified the death sentence to life imprisonment, is neither based on sound and cogent reasons, nor any mitigating circumstance' was available warranting a lesser punishment in the case of heinous crime' of brutal murder of the deceased. In our considered view, the prosecution evidence is confidence inspiring, A cold-blooded murder was committed by the appellant, which was fully supported by the ocular and circumstantial evidence as well as the medical evidence. This Court time and again has held that when a case for Qatl-i-amd is proved against accused normal sentence of death should be awarded, and this is the case in which the learned High Court has rightly awarded the death sentence under the law, which does not warrant interference. We do not find any mitigating circumstance for modifying the sentence from death to imprisonment for life."

For the above mentioned reasons, we are of the considered view that the prosecution has succeeded to substantiate the charge against the appellant beyond shadow of any reasonable doubt through coherent and confidence inspiring evidence. We have gone through the record and the impugned judgment, but could not find any mitigating circumstances in the case nor any misreading and non-reading of evidence was found. The conviction of appellant under section 302(b), P.P.C, is not illegal, as elements of mens rea to cause death of deceased and coming with preparation along with armed guards at the place of occurrence by the appellant are present in the case within the definition of Qatl-i-amd under section 301, P.P.C. Hence, the impugned judgment stands upheld, the appeal being devoid of merits is dismissed. The conviction and sentence of appellant through the impugned judgment by the trial Court is upheld and the criminal Murder Reference No. 05 of 2022 is answered in affirmative.

JK/187/Bal. Appeal dismissed.