ISHAQ ALAM Versus State
MALIK HAQ NAWAZ, C.J.--- We intend to dispose-off five cases bearing Criminal Appeal No. 31 of 2019, Criminal Appeal No. 32 of 2019 and Murder Reference No. 05 of 2019, Cr. Appeal No. 36 of 2019 and Cr. Revision No. 29 of 2019 through this single consolidated judgment, being corollaries of a single incident.
2. The appellants/convicts through Criminal Appeal No.31 of 2019 filed under section 410, Cr.P.C, have called in question the impugned judgment dated 03.10.2019 passed by the learned Sessions Judge Ghizer in Sessions Case No.15/2016, whereby the learned trial Judge convicted the appellants and sentenced to six months S.I. under section 459/34, P.P.C. and also convicted under section 506(2), P.P.C. and sentenced to further six months. Appellant No.2 Farhad Alam is further convicted and sentenced to five years S.I. under section 302(c), P.P.C. as Tazir with benefit of section 382-B, Cr.P.C. to both the appellants/convicts. Appellant No.1 lshaq Alam is further convicted under section 302(b), P.P.C. and sentenced to death for commission of Qatl-e-Amd of deceased Umar.
3. Through Criminal Appeal No.32/ 2019, appellant/convict Ishaq Alam has impugned the judgment dated 03.10.2019 passed by the learned Sessions Judge Ghizer in Sessions Case No.17/2017, whereby the learned trial Judge has convicted the appellant under section 13 Arms Ordinance 1965 and sentenced to fine of Rs.3,000/- (three thousand only) to be deposited in State Treasury failing which the appellant shall further undergo three months S.I., whereas the recovered 9mm pistol in FIR No.06/2016 is confiscated in favour of State.
4. The State and complainant through Cr. Appeal No.36/2019 have prayed for setting aside the impugned judgment dated 03.10.2019 passed in Sessions Case No.15/2016 to the extent of acquittal of respondents/accused Fakhar Alam and Burush Khan and requested for conviction of the said respondents/ accused; whereas through Cr. Revision No.29/2019, the State and complainant have sought enhancement of sentence awarded to convict/respondent Farhad Alam in Sessions Case No.15/2016 vide judgment dated 03.10.2019.
5. Facts of the case are that the complainant Khush Khan son of Murad Khan resident of Hamuchal submitted a written application to SHO of Police Station Singul stating therein that on 29.02.2016 at about 4:20 p.m. the complainant received a phone call from his real brother Abdullah who told him that his nephew (son of brother) Umar son of Dost Muhammad Khan has been murdered by Ishaq Alam and Farhad Alam sons of Muhammad Alam residents of Hamuchal. On this the complainant reached at Hamuchal from Gilgit where everyone was lamenting in the house of deceased. The dead body of deceased was lying in the guest room of his house. During inquest, it transpired that at 4.00 p.m. Ishaq Alam and Farhad Alam entered the house of deceased and opened indiscriminate firing at the person of deceased which hit his chest. Three other persons namely Riaz son of Nadir Aman, Saddam Hussain son of Abdullah Khan and Abdur Rehman son of Safiullah were also present with the deceased in his guest room who intercepted the descending persons, but failed as the attackers threatened to kill them and they paved way to the assailants to commit murder of the deceased. The assailants after commission of murder, fled away on a motorcycle towards village Sherqillah. Motive behind the occurrence was that there was suspicion of illicit relations of deceased with Mst. Gudi wife of Saadat Alam. Prior to the occurrence, on the same issue Fakhar Alam son of Muhammad Alam called the deceased in his house and took oath on the Holy Quran from the deceased. The complainant alleged that the murder has been committed in collusion with Fakhar Alam and Burush Khan alias Jamadar.
6. On written application of complainant, SHO of Police Station Singul chalked FIR No.06/2016 under sections 302, 458, 506(ii), 109/34, P.P.C. and the I.O./SHO Mehboob Hussain started investigation of the case. He arrested the principal accused Ishaq Alam and Farhad Alam. During investigation, the I.O. of the case recovered 9mm pistol with "PITERO BERETA MADE Itly PD" inscribed on its body, from the possession of appellant Ishaq Alam which was used in murder of deceased Umar. The appellant failed to produce valid licence of the said pistol, which resulted in registration of another FIR No.6/2016 under section 13 Arms Ordinance 1965 at Police Station City Gahkuch.
7. The Investigating Officer of the case, during investigation, replaced section 458 with section 459 in the challan since the occurrence was taken place during daytime. After completion of investigation, accused Ishaq Alam and Farhad Alam were committed to judicial lock-up, whereas the abetting accused Fakhar Alam and Burush Khan availed pre-arrest bail. The I.O. of the case fulfilled all the legal requirements and submitted challan of both criminal cases in the Court of Senior Civil Judge/Judicial Magistrate Punial/Ishkoman and the learned Judicial Magistrate forwarded the complete case files to the learned Sessions Judge Ghizer as the offence was exclusively triable by the Court of Session. On reception of case files, the learned Sessions Judge Ghizer initiated proceedings in the case.
8. On 13.06.2016, the learned trial Judge framed formal charge to which the response of the accused was in negative. They denied the charges levelled against them and decided to face proper trial. The learned trial Court summoned the prosecution witnesses to move ahead in the proceedings. In order to prove its case, prosecution examined 13 witnesses in main case, whereas only 02 witnesses were examined in the connected case.
9. A brief resume of prosecution's witnesses examined by the learned trial Court is as under:-
(PW-1) Khush Khan is FIR lodger and FIR Exh.PW-1/A is registered on his application; (PW-2) Riaz Muhammad is marginal witness of recovery memo of motorcycle Exh.PW-2/A; (PW-3) Basharat Ali is also marginal witness of Exh.PW-2/A; (PW-4) Saddam Hussain is eye-witness; (PW-5) Abdur Rehman is also an eye-witness; (PW-6) Mst. Jaffaria is wife of deceased and she is marginal witness of the occurrence; (PW-7) Muhammad Khan is driver who is also marginal witness of the incident; (PW-8) Abdullah is marginal witness of memos (Exh.PW-8/A) vide which the dead body of deceased was taken into possession by police. He is also marginal witness of blood stained piece of carpet (Exh.PW-8/B), recovery of seven empties of 9mm pistol (Exh. PW-8/C), identification of dead body (Exh.PW-8/D), delegation of dead body to doctor for postmortem (Exh.PW-8/E), receiving back of dead body from doctor (Exh.PW-8/F), delivery of dead body to legal heirs (Exh.PW-8/G), blood stained last worn clothes of deceased (Exh.PW-8/H), two spent bullets extracted from the body of deceased by doctor (Exh.PW-8/I); (PW-9) Sajjad Hussain is also marginal witness of Exh.PW-8/A to Exh.PW-8/I; (PW-10) Matloob Hussain is marginal witness of recovery of 9mm pistol (Exh.PW-10/A); (PW-11) Dr. Habib Khan has conducted autopsy of dead body of deceased Umar; (PW-12) Mehboob Hussain IP/SHO is the Investigating Officer of the case; (PW-13) Rehmat Baig I.O./IP has received FSL reports and submitted them in the Court.
10. When prosecution closed its evidence, then the next step in proceedings was to examine the accused persons under section 342, Cr.P.C. Accordingly, the learned trial Judge on 04.05.2019 recorded statements of appellants/convicts under section 342, Cr.P.C. separately and confronted them with all the incriminating material available on record. They refused to acknowledge their guilt and professed innocence. The appellant/convict Ishaq Alam made his statement on oath under section 340(2), Cr.P.C. and produced on witness namely Nazeem Ahmed son of Sultan Ameen in his defence, whereas appellant/convict Farhad Alam neither opted to record his statement on oath under section 340(2), Cr.P.C. nor examined any witness in his defence.
11. The learned trial Judge after completion of trial and hearing both the parties, convicted the appellants and awarded sentences as stated supra, whereas co-accused namely Fakhar Alam and Burush Khan were acquitted from the charges. Hence the instant appeals before this Court.
12. The learned trial Judge vide No. DSJ-GZR-J-9(ii) / 2019 dated 03.10.2019, has sent the record of murder case along with murder reference under section 374, Cr.P.C. for confirmation of death penalty awarded to appellant/ convict Ishaq Alam under section 302(b), P.P.C., which was registered in this Court as Murder Reference No.05/2019.
13. It is worth to mention here that this Court while entertaining an application under section 426, Cr.P.C. for suspension of impugned judgment dated 03.10.2019 to the extent of petitioner/convict Farhad Alam, released the said petitioner/convict on bail by suspending the impugned judgment vide order dated 21.11.2019 passed in Cr. Misc. No.260/2019 in Cr. Appeal No.31/2019.
14. Learned counsel for the appellants/convicts submitted that the FIR is lodged after considerable delay of two hours without explanation and the statements of PWs were also recorded under section 161, Cr.P.C. after 3 to 7 days of the occurrence. The incident was not reported to the police by the father, brothers and eye-witnesses of the alleged occurrence till the arrival of the complainant at the scene of occurrence who was admittedly at Gilgit at the time of occurrence, which makes the case of prosecution doubtful and outcome of afterthought and deliberation to book the present appellants in the instant case. The learned counsel for the appellants/convicts argued that all the PWs produced by prosecution are not only interested witnesses but also chance witnesses, the testimony of such witnesses could not be made basis for recording conviction unless it finds strong corroboration with independent ocular and circumstantial evidence. The learned counsel for the appellants/convicts contended that the learned trial Judge has erred while evaluating the evidence of the witnesses and passed the impugned judgment which is against the mandate of law and norms of justice. The learned counsel for the appellants/convicts further argued that the complainant and the Investigating Officer are of contradictory views regarding material facts of the case. The complainant denied of his visit to Police Station Singul for submission of his application for lodging FIR (Exh.PW-12/A), but in footnote of the FIR, the SHO has written that the complainant came to Police Station Singul and submitted his written application for lodging of FIR. The statements of above two PWs contradict each other and enough to negate the allegations in FIR against the appellants/ convicts. The learned counsel for the appellants further submitted that the prosecution has badly failed to produce any evidence to prove the motive mentioned in the FIR and recovery of alleged crime weapon i.e. 9mm pistol and alleged motorcycle used in commission of offence were fake and factitious as the recovery witnesses have not supported the prosecution version, but the learned trial Judge has drawn wrong inference from the evidence. The learned counsel for the appellants / convicts argued that investigation of the case is not in line with mandatory provisions of relevant laws and rules and has been maliciously conducted to indict the present appellants. The learned counsel for the appellants/convicts submitted that the case falls under the jurisdiction of Police Station Singul, but the entire investigation is carried out in Police Station Gahkuch, which makes the prosecution's case highly doubtful, but the learned trial Court has ignored this material fact. The learned counsel for the appellants/convicts further contended that the impugned judgment is result of misconception, misunderstanding and misinterpretation of relevant provisions of law. The learned counsel for the appellants/convicts argued that the trial Court has failed to appreciate material discrepancies of the case and extended the benefit of material discrepancies in favour of prosecution instead of appellants. Lastly, the learned counsel for the appellants/convicts submitted that the impugned judgment is not based on cogent reasons rather the same is based on suppositions and conjectures, he prayed for acquittal of appellants from the charges by setting aside the impugned judgments to meet the ends of justice.
15. On the other hand, the learned Dy. Advocate General and counsel for the complainant vehemently opposed the arguments advanced by the learned counsel for the appellants/convicts and supported the impugned judgments by arguing that the appellants/convicts are nominated in the FIR with specific role. The learned Dy. Advocate General and counsel for the complainant contended that all the PWs are reliable and trustworthy and are in line with each other. They further argued that prosecution has established its case beyond any doubt and every piece of evidence connects the appellants/ convicts with the commission of offence. The learned Dy. Advocate General and counsel for the complainant submitted that the 9mm pistol which was used in crime has been recovered on pointation of appellant/convict Ishaq Alam and the report of National Forensic Science Agency confirms that the said pistol has been used as crime weapon. The learned Dy. Advocate General and counsel for the complainant argued that the postmortem report also supports the version of prosecution. The learned Dy. Advocate General and counsel for the complainant argued that the appellants/convicts after committing murder, had fled away from the scene on a motorcycle and the recovery of motorcycle shows that the appellants/convicts have committed murder of the deceased. The learned Dy. Advocate General and counsel for the complainant submitted that the offence against the appellants /convicts have been proved beyond any shadow of doubt, the two eye-witnesses have fully narrated the ocular account of the occurrence in a natural and convincing manner. The learned Dy. Advocate General argued that the ocular evidence of eye-witnesses has been supported by postmortem report and recovery of empty shells, spent bullets and 9mm pistol on pointation of the accused Ishaq Alam. The Forensic Science Laboratory report has confirmed that seven 9mm bore crime empties were fired from 9mm pistol in question. The learned Dy. Advocate General and counsel for the complainant argued that there is no major contradiction between the statements of PWs. With these submissions, the learned Dy. Advocate General and counsel for the complainant requested that the learned trial Judge has rightly convicted the appellants which may be maintained to meet the ends of justice.
16. We heard the arguments of the learned counsel for the parties and scrutinized all the available record of the case.
17. The appellants were booked in the FIR No.06/2016 of Police Station Singul for murder of one Umar son of Dost Muhammad resident of Hamuchal, Tehsil Punial, District Ghizer on written report of complainant Khush Khan son of Murad Khan. The FIR was chalked on the same day of occurrence i.e. 29.02.2016, wherein the time of occurrence is 1600 hours and the time of report is 1810 hours. Thus the matter is reported to police with a nominal delay of two hours and ten minutes which is not an inordinate delay and detrimental to the case of prosecution. The complainant in his written application has manifestly stated that he was in Gilgit at the time of occurrence and informed telephonically by one Abdullah regarding the tragic incident and he left for village Hamuchal which is situated at almost 38km from Gilgit and then submitted his application to SHO of Police Station Singul which is situated at a further distance of nearly 16km from village Hamuchal. The explanation for delay in reporting the matter is sufficient enough and trustworthy. The complainant has reported the matter to police with clean hands having no malice of false implication.
18. The shocking incident happened when, as per written application of complainant Exh.PW-1/A, Riaz son of Nadir Aman, Saddam Hussain son of Abdullah Khan and Abdur Rehman son of Safiullah were present in the house of deceased who have witnessed the occurrence. The statements of these eye-witnesses were recorded by the police on the very next day of occurrence under section 161, Cr.P.C. Prosecution examined Saddam Hussain as PW-4 and Abdur Rehman PW-5, and abandoned PW Nadir Aman. The statements of these eye-witnesses have played a decisive role in conviction of the appellants.
19. PW-4 Saddam Hussain deposed before the trial Court on 18.03.2017 and his statement for the purpose of ease, is reproduced as under:
"Stated that on 29.02.2016 at about 4:10-15 p.m. I went to the house of deceased Umar and there Riaz and Abdur Rehman were already present with the deceased in his Bethak. I joined them. We were busy in talking to each other. In the meantime, accused Ishaq Alam and Farhad Alam entered from the door and shouted that where is kanjar Umar. They entered the room. We attempted to intercept and interfere but Ishaq Alam accused aimed his pistol and threatened us with death and with reaching at the door opened fire. We tried to catch Ishaq Alam but Farhad Alam interfered and prevented us from getting hold of Ishaq Alam. Ishaq Alam opened fire on Umar and both killed Umar and left the scene of occurrence. Police had recorded my statement in connection with this case."
Whereas, PW-5 Abdur Rehman deposed as under:
"Stated that mother of deceased Umar has contracted marriage with me after having been divorced by the father of Umar. The deceased had started living with us and after that I have given him a certain piece of land to construct a house for himself in which he was living with his wife. I have no knowledge about the internal differences and controversy between the deceased and the accused party. On 29.02.2016 at about 4:00pm I went to the home of deceased Umar. When I reached there PW Riaz was already sitting there with Umar. At about 10 minutes of my arrival PW Saddam also came there. After some time accused Farhad and Ishaq entered the house and used abusive words and aimed pistol at us by Ishaq Alam and ordered us to keep side and opened fire on Umar which hit Umar and the accused left the scene of occurrence. We were empty handed and were shocked therefore could do nothing. The abusive language was used by Ishaq Alam alone. Police had recorded my statement about this case. I know nothing more about the case."
20. Both these eye-witnesses unequivocally stated the same ocular account of the occurrence without slightest contradiction. They have vividly depicted that accused Ishaq Alam had opened fire at the deceased, while accused Farhad Alam remained accomplice in accomplishment of sordid intention of murder. The witnesses confirmed each others presence in the house of deceased and this fact is further verified by the statement of Mst. Jaffaria (PW-6). She is wife of deceased and relevant part from his testimony is extracted as under:
"Me and my husband were in conversation that PW Riaz came to our house. After Riaz my father in law Abdul Rehman came to our home and after him PW Saddam came there. I went to the kitchen to prepare tea for them. I prepared tea and my kids were not present in my house therefore I went to the home of my father-in-law to call my kids to take tea for the guests"
The presence of these eye-witnesses on the spot where the fateful occurrence took place cannot be doubted at all, thus their statements are confidence inspiring and credible. The eye-witnesses have given natural and cogent picture of the unlucky occurrence and the learned defence counsel utterly flopped to shatter their natural account despite being lengthy and taxing cross-examination.
21. It is a day light occurrence and the eye-witnesses are the residents of the same locality viz. village Hamuchal, well known to one another in the village, hence neither any question of misidentification can arise, nor any such plea has been taken by the appellants. The apprehension of false accusation or perjury on the part of eye-witnesses vanishes, when there is no material on record to expose any enmity or bad relations of the appellants/convicts with the PWs to make their testimonies ambiguous. Although the said eye-witnesses are related with the deceased, but their testimonies could not be discarded only on this ground, as held in PLD 2008 SC 123 that "in the absence of any enmity or ill will mere relationship is not a valid ground to discard the evidence of PWs." Guidance can also be sought from the case titled "Abdur Rauf v. the State" (2003 SCMR 522), wherein it is ruled out that:
"We may observe that relationship itself is no ground to discard and discredit the testimony of eye-witnesses unless it is shown that they are partisan and interested witnesses. The eye-witnesses in the present case undoubtedly are related to the deceased but they have been found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge."
22. Among the eye-witnesses, PW Riaz son of Nadir Aman has been abandoned by the prosecution, which as per contention of the learned counsel for the appellants was a star witness. The evidence of multiple witnesses would not endorse the genuineness of an incident, nor testimony of a single witnesses in criminal cases be ruled out mere on the ground that it was not corroborated by other witnesses. In the case of "Mandoos Khan v. The State" (2003 SCMR 884), the Apex Court has held that:
"(c) Ss. 302/34 & 307/34... Number of witnesses... Prosecution must produce best kind of evidence to establish accusation against accused facing trial but simultaneously it has no obligation to produce a good number of witnesses because it has an opinion to produce as many as witnesses which in its consideration are sufficient to bring home guilt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality of the evidence which matters..."
Whereas, in PLD 1980 Supreme Court 225, the Apex Court has maintained, relevant citation is reproduced as under:
"Conviction, even in murder cases, held, can be based on testimony of a single witness if Court satisfied as to witness being reliable--- Emphasis, held further, laid on quality of evidence and not on its quantity."
23. Besides ocular account, the case of prosecution also gets strong assistance from circumstantial evidence in the shape of recovery of blood stained piece of carpet, seven empties of 9mm pistol from the place of occurrence, blood stained last worn clothes of the deceased, spent bullets extracted from the body of deceased taken into custody by the Investigating Officer and these were sent to FSL for expert's opinion in sealed parcels. As per Serologist opinion, the blood found on carpet, shirt and shalwar was human blood and of the same group. The credibility of above recoveries was avouched by recovery witnesses Abdullah (PW-8) and Sajjad Hussain (PW-9). Both the PWs identified the articles which were taken into possession by police in their presence. The contention of learned counsel for the appellants/convicts with regard to delay in sending of incriminating articles for expert's opinion, is out of context as the said articles i.e. blood stained piece of carpet, 07 empties of 9mm pistol, blood stained last worn clothes of the deceased, two spent bullets extracted from the body of deceased and 9mm pistol were preserved and sealed in parcels properly for which positive reports from experts have been received. Reliance is placed on PLD 2006 Pesh. 5, whereby it is held that delay in sending the incriminating articles to the concerned quarters for expert opinion cannot be treated as fatal to the prosecution case in the absence of allegation regarding the same having been tampered with or manipulated.
24. Medical evidence also fully corroborates the version of prosecution. As per postmortem report, the deceased had received six inlet and three exit fire arm injuries. Dr. Habib Khan (PW-1 1) of Civil Hospital Singul, who has conducted autopsy of the dead body opined in the end of his postmortem report, which is reproduced for convenience as under:
"WEAPON USED: Weapon used is 9mm pistol.
OPINION/CASE OF DEATH: In my opinion based on the observation made during postmortem examination death has been occurred due to fire arm violence and excessive (internal/ external) hemorrhage."
During autopsy proceedings, the doctor had extracted two spent bullets from the body of deceased, which were preserved and sent in sealed parcel for opinion of firearm expert. The Fire Arms Expert through his report Exh.PW-13/B has maintained that "Examination of the case has revealed that the two crime bullets marked B1 and B2 are that of 9 MM bore." The opinion of Fire Arms Expert corroborates the opinion of medical officer i.e. usage of 9mm pistol in the crime. The eye-witnesses have also stated that appellant/convict Ishaq Alam had opened multiple fire shots on the person of deceased, which is further corroborated by medical evidence. Thus the medical evidence, report of Fire Arms Expert and statements of eye-witnesses are in line.
25. The recovery of 9mm pistol having PITERO BERETA MADE ITAly (PD) inscribed on its body, on pointation of appellant/convict Ishaq Alam was also sent for Fire Arms Expert's opinion, which was received with the report reproduced as under:
"OPINION: Examination of the case revealed that the seven 9 MM bore crime empties marked C1 to C7 were fired from 9 MM bore pistol, in question, in view of the following major points i.e. striker pin marks, breach face marks, chamber marks, etc are similar."
The 07 empties were recovered from the place of murder, whereas the 9mm pistol was recovered on pointation of appellant/convict Ishaq Alam which was concealed by the appellant/convict Ishaq Alam beneath a stone adjacent to Kanche Road. The report Exh.PW-13/C reveals that the recovered 9mm pistol was used by appellant/convict Ishaq Alam in the crime and this fact gets invigoration from another report of Fire Arms Expert Exh.PW-13/B vide which the extracted spent bullets from the dead body, were of 9mm bore.
26. The learned counsel for the appellants/convicts averred that the motive of the occurrence is not proved by the prosecution. This plea of the learned counsel carries no weight, as it is maintained by Apex Court in 2008 SCMR 1352 that motive being not an essential component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal or lesser punishment, if on the basis of other evidence the charge is proved.
27. Alibi is used when the accused takes the plea that when the occurrence took place he was elsewhere. In such a situation the prosecution has to discharge the burden satisfactorily. Once the prosecution is successful in discharging the burden it is incumbent on the accused who takes the plea of alibi to prove it with absolute certainty. In the instant case appellant/convict Ishaq Alam assumed the plea of alibi by stating in his statement record under section 340(2), Cr.P.C. that he was at Gahkuch on the fateful day from morning till evening while running his shop of electrical instruments and he produced one DW namely Nazeem Ahmed and some documentary evidence. The appellant/convict Ishaq Alam during his cross-examination while recording his statement under section 340(2), Cr.P.C. stated that "it is incorrect to said that Nazeem Ahmed is son of my paternal aunt", whereas DW Nazeem Ahmed in his cross-examination has stated that "it is correct that my mother is paternal aunt of the accused", which shows that the DW is related to appellants/convicts and his statement cannot be trustworthy. Gahkuch is a crowded city and in Makkah Market, where the appellant/convict Ishaq Alam is carrying his business, 20/22 shops exist including the shop of appellant/convict and this fact is also admitted by the appellant/convict in his cross-examination. The appellant/convict Ishaq Alam failed to produce any impartial witness from a place which remains crowdy during day time and relied on a single witness to prove his alibi. The documents i.e. bank statement and biding documents are not satisfactory to believe as the bank statement and biding documents are unattested and the bank statement does not show the time of deposition and withdrawal of amount. Furthermore, in Karakorum Co-operative Bank transaction is only possible through cheque book, and it can safely be inferred that deposition/withdrawal on the fateful date in the account of accused Ishaq Alam through cheque has been made by someone else, which the appellant/convict might have signed earlier. The appellant/ convict has miserably failed to prove his plea of alibi through convincing and reliable evidence. The appellants/convicts after commission of offence, had fled away on a motorcycle from the scene and the said motorcycle was later on recovered by police from the possession of appellant/convict Ishaq Alam. It takes approximately 30 minutes to reach at Gahkuch from village Hamuchal and a skilled rider of motorcycle may reach at Gahkuch from the spot of occurrence even before 30 minutes. It is almost possible that the appellant/convict Ishaq Alam after committing murder of deceased had rushed to Gahkuch on motorcycle and remained there with DW till evening to mischief and escape from the clutches of law enforcing agencies, but his plan dashed to the ground when the eye-witnesses exposed reality and his cruel face.
28. The learned counsel for the appellants/convicts failed to point out any major contradiction which may shatter the case of prosecution. Some minor discrepancies are inevitable bound to occur on account of lapse of memory owing to the intervening period, as in the instant case admittedly the statements of witnesses are recorded after lapse of more than one year and after passage of such a long period, minor discrepancies may occur in the statements of PWs and the accused cannot be get premium thereof. In this respect, the Hon'ble Supreme Court of Pakistan is case titled "Allah Baksh v. Ahmed Din (1971 SCMR 462) " has observed that minor discrepancies in deposition of prosecution witnesses of inconsequential nature cannot reasonably be considered as good grounds in disbelieving independent and disinterested witnesses. If importance is given to such insignificant inconsistencies, there can hardly be any conviction, for seldom is there a witness whose evidence does not suffer from such inconsistencies. The learned counsel for the appellants/convicts failed to bring on record any mitigating circumstance, which could be taken into consideration to reduce the sentence of death awarded to convict/appellant Ishaq Alam, as the normal penalty of murder is death.
29. In view of the above detailed discussion, we are of the firm opinion that prosecution has properly established its case against the appellant/convict Ishaq Alam and the learned trial Court to the extent of appellant/convict Ishaq Alam has rightly appreciated the evidence in its true perspective and no illegality or irregularity is found, which may warrant interference in the well reasoned findings of trial Court. Sentence awarded to appellant/convict Ishaq Alam by the trial Court is maintained. Whereas appellant/ convict Farhad Alam, who was allegedly accomplice of principal accused and was driving motorcycle, but the said motorcycle was not recovered on his pointation. Hence, appellant/convict Farhad Alam is acquitted from the charges extending him benefit of doubt.
30. Resultantly, Cr. Appeal No. 31/ 2019 filed by appellants/convicts Ishaq Alam and Farhad Alam is partially allowed with the above modification in the judgment dated 03.10.2019 passed by trial Judge in Sessions Case No.15/2016, whereas Cr. Appeal No.32/2019 filed by appellant/convict Ishaq Alam is dismissed by upholding the judgment dated 03.10.2019 passed by trial Court in Sessions Case No.17/2016. Murder Reference No.05/2019 is answered in "AFFIRMATIVE". Whereas Cr. Appeal No.36/2019 and Cr. Revision No.29/2019 filed by the State and complainant are dismissed.
31. Criminal Appeal No.31/2019, Criminal Appeal No.32/2019, Murder Reference No.05/2019, Criminal Appeal No.36/2019 and Criminal Revision No.29/2019 are disposed-off accordingly.
JK/78/GB Order accordingly.