A bare perusal of the record shows that the unfortunate incident, wherein the brother of the complainant lost his life, took place on 21.08.2009 at 4.30 PM. The matter was reported to the Police and the FIR was lodged on the same day at 06.15 PM i.e. just after one hour and forty five minutes of the occurrence. Keeping in view the inter se distance between the place of occurrence and the Police Station i.e. 20 kilometer, the FIR is considered to be promptly lodged. The occurrence took place in the broad daylight whereas the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Naveed Aram Khan, complainant (PW-10) and Iftikhar Khan (PW-11). The complainant NaveS Akram was brother of the deceased while the other PW lftikhar Khan was maternal uncle (kholoo) of the deceased. Both these witnesses were residents of the same locality where the occurrence took place, therefore, their presence at the place of occurrence on the fateful day and time is not unnatural. These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the appellant or adverse to the prosecution could be brought on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. As far as the question that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity is concerned, it is now settled that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the appellant could not paint out any plausible reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like cases is a rare phenomenon. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is settled law that even if there are some minor discrepancies, the same should be ignored if they do not hamper the salient features of the prosecution case. As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. From the place of occurrence, two crime empties of .30 bore pistol were recovered. The same were sent to Forensic Science Laboratory on 26.082009 whereas the pistol recovered from the appellant was subsequently sent to FSL on 03.09.2009 much prior to the dispatch of the pistol. According to the report of the FSL, the crime empties matched with the weapon recovered from the appellant. In these circumstances, there is sufficient material available on record to sustain conviction of the appellant. However, so far as the quantum of punishment is concerned, we are of the view that the same requires consideration. According to the prosecution, on 20.08.2009 a quarrel took place between the appellant and servant of Ehsan UUah, deceased. The deceased had reprimanded the appellant and due to this grudge, the appellant committed the murder of Ehsan Ullah. The prosecution has also produced servant of the deceased namely Sher Ahmed as PW-7. In his statement, Sher Ahmed deposed that the appellant wanted him to work with him and he asked him to leave the job of the deceased. A bare perusal of the statement of the said witness reveals that the real motive of the appellant was with the said Sher AU, therefore, the actual motive to commit the murder of Ehsan Ullah remained shrouded in mystery. It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the said motive might be considered a mitigating circumstance in favour of an accused. However, where no motive is alleged, the capital punishment can be awarded keeping in view the evidence led by the prosecution. In these circumstances, we are of the view that the penalty of death would be harsh. Consequently, while maintaining the conviction of the appellant under Section 302(b) PPC, the sentence of death is altered into imprisonment for life duly provided under the statute.
CRIMINAL APPEAL NO. 190 OF 2020
All Asghar @ Aksar VERSUS The State
07-12-2022
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