Kh. Muhammad Sharif, J.--This appeal is directed against the judgment dated 15.9.2000, passed by the learned Additional Sessions Judge, Chakwal (Camp at Talagang), whereby, after having tried the appellants and four others, appellant Amir Khan was convicted under Section 302(b) PPC and sentenced to death with a further direction to pay a compensation of Rs, one lac as provided under Section 544-A Cr.P.C. in default whereof to further undergo six months imprisonment.
Appellant Khalid Mehmood was convicted under Section 302/34 PPC and sentenced to imprisonment for life with a further direction to pay a compensation of Rs, one lac as provided under Section 544-A Cr.P.C. in default whereof to further undergo six months imprisonment.
Appellant Abdul Razzaq was convicted under Section 302(b)/34 PPC and sentenced to imprisonment for life with a further direction to pay a compensation of Rs, 50,000/- as provided under Section 544-A Cr.P.C. in default whereof to further undergo three months imprisonment. He was further convicted under Section 324 PPC and sentenced to 7 years RI with a fine of Rs, 5,000/- in default whereof to further undergo 3 months SI. The said appellant was further convicted under Section 337-F(ii) PPC and sentenced to punishment of Rs, 5,000/- as Daman for each injury i,e, Injuries Nos, 2 to 5, which was directed to be paid to Abdul Ghaffar injured-PW. Appellants Amir Khan and Khalid Mehmood were further convicted under Section 324/34 PPC and sentenced to 7 years RI each with a fine of Rs, 5,000/- each in default whereof to further undergo six months S.I.
They were also convicted under Section 337-F(ii)/34 PPC and sentenced to Rs, 5,000/- each as Daman for each injury sustained on the person of Abdul Ghaffar injured-PW i,e, Injuries Nos, 2 to 5 which were directed to be paid to the injured PW. However, four co-accused of the appellants, namely, Muhammad Ishaque, Shah Nawaz, Ijaz Hussain and Amir Sultan were given benefit of doubt and acquitted from the case. The appellants have assailed the above conviction and sentence through Crl. A. . No, 375/2000, Crl. A. . No, 398/2000 was filed against the acquittal of the four acquitted accused of the case, Crl. Revision No, 140/2000 was filed for enhancement of sentence of Khalid Mehmood and Abdur Razzaq convicts while the learned trial Court has sent the titled Murder Reference for confirmation of the sentence. All these matters are being disposed of through this single judgment as they arise out of the same judgment.
2. Brief facts of the case, as given by the complainant Mamrez Khan (PW-8) in the FIR are that since long the water of the village drain used to go to the land of Amir Khan accused to which he objected, funds were collected by the people of the village, a drain was constructed and the water was diverted to the said drain; that the accused wanted the water of the said drain towards their land; that two days prior to the occurrence, the accused stopped the water to pass the same from near the baithak of the complainant; complainant objected to the said passage of water which was likely to damage the foundations of his baithak; that Amir Khan insisted to pass the said water from near the said baithak; that, in realisation, after a short-while on the same day, Amir Khan alongwith co-accused reached the spot and raised Lalkara to pass the water from the said place; that on hearing the Lalkara, son of the complainant, namely, Sultan Ali went outside in the street; that, Khalil Mehmood fired shot with gun which hit Sultan on his nose; that Amir Khan made fire with .12 bore gun which hit Sultan Ali on the left side of his head; that Shah Nawaz fired with .12 bore gun which hit Abdul Ghaffar on right side of his abdomen; that Abdul Razzaq and Shah Nawaz started firing simultaneously which hit Abdul Ghaffar on different parts of his body; that Sardar Bano, Ghulam Roqia and Ghulam Safia came forward to rescue him whereupon, Ishaq inflicted a Chhurri blow inside on the right hand of Ghulam Safia, Sultan accused pelted stone on right side of head of Ghulam Roqia, Ijaz pelted stones on right arm of Sardar Bano, the hue and cry attracted the prosecution witnesses to the spot and that the injured were taken to the hospital where Sultan succumbed to the injuries on the way. The motive for the occurrence was passage of the drain water.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced sixteen witnesses during the trial.
4. Learned counsel for the appellants in support of Crl. Appeal No, 375/2000 and while defending the respondents in Crl. A. No, 398/2000 and Crl. Revision No, 140/2000, submits that all the four acquitted accused, namely, Muhammad Ishaque, Shah Nawaz, Ijaz Hussain and Amir Sultan were declared innocent by the police during the course of investigation; that they were rightly acquitted from the case; that appeal against their acquittal was filed in which notice was issued only to the extent of Muhammad Ishaque and Shah Nawaz; that according to the FIR, Shah Nawaz acquitted accused, was armed with a .12 bore gun and fired a shot which hit Ghaffar injured-PW while the injury attributed to him is with sharp edged weapon injury, so, there is a conflict between the ocular account and the medical evidence; that the said accused was rightly acquitted from the case by the learned trial Court and his acquittal does not call for any interference by this Court; that, as far, as case of Muhammad Ishaque acquitted accused is concerned, he was allegedly armed with a Chhurri and caused injury on the person of Ghulam Safia but, according to the MLR, there are only two scratches on her person which falsifies the prosecution case to the extent of the said accused as well and that acquittal of both the above acquitted accused was a just and fair and does not call for interference by this Court.
While advancing his arguments, learned counsel for the appellants contends that in the site-plan (Exh.PD) no place has been shown from where the blood-stained was taken; that point 5 in the site-plan is a place from where the accused Abdur Razzaq fired a shot at Ghaffar injured while point 4 is a place where Ghaffar Was injured and distance from point 4 to point 5 is a 64 feet; that in between both the points there is a wall of seven feet height; that the injury could not have been caused from that place; that no blackening could have been occurred; that Injury No, 4 is attributed, to Razzaq but other injury to him is attributed to both Razzaq and Shah Nawaz; that nothing was recovered from Shah Nawaz; that no injury is attributed to Razzaq on the person of the deceased; that the injuries on the person of the deceased are attributed to Ameer Khan and Khalid Mehmood appellants and it is not clear as to which of them proved fatal which is a mitigating circumstance in favour of both of them; that the conviction of appellant Khalid Mehmood under Section 302/34 PPC is not called for and that in support of this contention, he would like to refer to a judgment of the High Court in Sarfraz & 4 others us. The &ate (1971 P.Cr.L.J. 205).
Learned counsel for the complainant submits that it was a broadday-light occurrence; that it is a case of promptly lodged FIR; that there is no previous enmity and no question arises for substitution or false implication; . that the prosecution has proved motive part of the story through independent eye-witness account; that the defence plea raised by the accused is not borne out from the record rather the defence has admitted presence of the eye-witnesses at the place of occurrence who are natural witnesses; that Abdul Ghaffar (PW-11) and Abdul Ghaffar (PW-9), being injured, are star witnesses of the case; that the prosecution has proved its case qua manner and venue of the occurrence i,e, in front of the house of the complainant and the deceased; that the blood-stained earth was taken from the place, as stated by . the prosecution; that the appellants have failed to prove the defence plea regarding the venue of the occurrence; that the pellets of the fires made by the, appellant party were recovered from the wall which further corroborates the prosecution case; that the learned defence counsel, - himself suggested to the doctor that the injuries could have been the result of pellets; that the ocular account is corroborated by the medical evidence; that Injury No, 1 on the person of Abdul Ghaffar was declared as an incised wound by the doctor, it can be the result of fire-arm injury ix, pellet injury if the same is struck on the rounded turn of the body; that there is a possibility that when both the appellants i,e, Ameer Khan and Khalid Mehmood fired at the deceased, some astray pellet had struck Abdul Ghaffar causing Injury No, 3 which had blackening and burning, that is why the said injury was not attributed to any body; that rest of the injuries on the person of Ghaffar did not have burning or blackening and that the injuries on the person of Ghulam Safia, which are scratches, can be the result of a sharp edged weapon.
While concluding his submissions, learned counsel for the complainant submits that the occurrence had taken place with pre-concert and pee-meditation; that the remaining accused persons are very closely related to Amir Khan, the main accused; that the learned trial Court has distinguished the case of Khalid Mehmood appellant from the case of Amir Khan appellant on the ground that the injury attributed to the said Khalid did not prove fatal and that there is no mitigation qua the case of said Khalid as well.
5. On the other hand, the learned Assistant Advocate-General Punjab, appearing on behalf of the state, while assisting the Court, has referred to the cross-examination of Mamraz Khan complainant (PW-8), at page 51 of the Paper Book, which reads as under: It is incorrect to suggest that our womenfolk, the deceased and . Ghaffar were attacking Amir Khan when he took out his licensed gun from his house and fired hitting the deceased and Ghaffar PW. He further submits that the prosecution has proved its case against the appellants beyond a shadow of doubt and that this appeal is liable to be dismissed and the Murder Reference may be answered in the affirmative.
6. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 4.1.1999 at 2.30 p.m., the matter was reported to the police at 4.15 p.m. at Civil Hospital Talagang on the same day while the formal FIR was recorded by the same day at 4.30 p.m. in the Police Station and the distance between the place of occurrence and the Police Station is nine miles. The delay, if any, has reasonably been explained and even otherwise, it is settled by now that the delay, per se, in lodging the FIR is not fatal to the prosecution case. In other words it can be said that it is a promptly lodged FIR. It is a case in which one person, namely, Sultan was murdered while four persons, including the womenfolk, received injuries, those are, named, as Abdul Ghaffar, Ghulam Shafia, Ghulam. Roqia. and Sardar Bano,
8. The prosecution to prove its case produced Mamraiz Khan complainant (PW-8), Abdul Ghaffar injured-PW-9 and Ghulam Shafia as PW-11 who is also injured in this case.
9. Mamraiz Khan (PW-8) is father of the deceased. He is also complainant of the case. Although he is closely related to the deceased i,e, father yet he has no enmity or strong motive to falsely implicate the appellants in this case. Moreso, it is rare phenomenon that a real father of the deceased would substitute the real culprit of the case. He has reasonably explained his presence at the place of occurrence and we see no reason not to accept his statement. Notwithstanding the fact that he was subjected to lengthy cross-examination but nothing could be shaken from his testimony.
10.There is yet another eye-witness of the case, namely, Abdul Ghaffar (PW-9) who appeared before the learned trial Court in support of the prosecution case. Although he is related to the deceased yet he has attained an important place in the case because being an injured witness of the case he can be considered to be a star witness. His presence at the place of occurrence cannot be doubted. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points. Although he is also related to the deceased yet he has no enmity with the appellants to falsely depose against them. He has also reasonably proved his presence at the spot to have witnessed the occurrence. This Court see his testimony to be worthy of credence. All the above witnesses have proved their case against the appellants. Apart from the above prosecution witnesses, there is yet another eye-witness of the case, namely, Ghulam Shafia (PW-11). Although Ghulam Roqia and Sardar Bano were given up by the prosecution yet their non-appearance left no bearings affects cm the case.
11.While taking into consideration the case of Muhammad Ishaque acquitted accused, we note that he was allegedly armed with a Chhurri and caused injury on the person of Ghulam Safia but, according to the MLR, there are only two scratches on her person which falsifies the prosecution case to the extent of the said accused as well because there is a clear cut conflict between the ocular account and the medical evidence to the extent of Ishaq respondent, so, his acquittal was a just and fair and we are not inclined to interfere with his acquittal. We have looked the case of Shah Nawaz acquitted accused. He was armed with a .12 bore gun and fired a shot which hit Ghaffar injured-PW while the injury attributed to him is a sharp edged weapon injury, so, there is a conflict between the ocular account and the medical evidence to his extent as well. We are in agreement that the said accused was rightly acquitted from the case by the learned trial Court and his acquittal does not call for any interference by this Court as well. According, Crl; Appal No, 398/2000 filed against their acquittal from the case, in which notice was issued to the extent of both the above respondents only, is hereby dismissed having no merit.
12.Now we would take up the case of appellants Amir Khan. Khalid Mehmood and Abdul Razzaq in Criminal Appeal No, 375/2000. The allegations against them are that Khalid Mehmood appellant, while armed with a .12 bore gun, fired a straight shot at deceased Sultan on his face which hit his nose. Amir Khan appellant is also attributed a direct .12 bore shot on the head of deceased Sultan.
Both the injuries are present on the person of the deceased being Injury No, 1 and Injury No, 2, so, the ocular account is corroborated by the medical evidence to their extent. There is also a third injury on his body which, according to the doctor is the result of Injury No,
2. Dr. Abdul Samad has appeared as PW-1. According to his opinion: death was caused by each of either injuries both damaging the vital organs i,e, brain, controller of the body. Major vessels in the brain were damaged also causing shock. Both injuries were ante- mortem and caused by fire-arm weapon and were sufficient to cause death in the ordinary course of nature individually and collectively...."
Then we are left with the case of Abdul Razzaq appellant. The allegation against the said appellant is that, at first, he fired a straight shot of .12 bore gun at. Abdul Ghaffar injured-PW which hit in his abdomen. Then the said-appellant and acquitted accused Shah Nawaz simultaneously fired at him which hit on different parts of his body. The fire-arm injury attributed to Abdul Razzaq is present on the person of the said injured which is Injury No, 4, so, the ocular account to his extent as well, is corroborated by the medical evidence. There is only one injury of the kind which has burning and blackening. We are in agreement with the learned counsel for the said appellant that some astray pellet had struck Abdul Ghaffar causing Injury No, '3 which had blackening and burning, that is why the said injury was not attributed to anybody.
13. All the appellants are specifically named in the FIR and specific roles have been assigned to them. As discussed above, the injuries attributed to all the three appellants are present in the MLRs, So, the ocular account to the extent of all the appellants is corroborated by the medical evidence.
Even otherwise, it is settled by now by the August Supreme Court of Pakistan that the Courts have to weigh with the quality of the evidence and not the quantity. In this regard. This Court is fortified with a judgment of the August Supreme Court of Pakistan reported in Allah. Bakhsh us. Shammi and others (PLD 1980 Supreme Court 225), wherein, at page 227 of the judgment, it was observed that "the general principle, on the other hand, is that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence, and not on its quantity".
Further more if the ocular evidence was trustworthy, coherent, consistent and confidence inspiring, minor discrepancies cropping up in prosecution evidence without touching its intrinsic value were of no avail to the defence. This ratio was laid down by the Apex Court of the country in Mandoos Khan vs. The State (2003 SCM R 884).
14. In the present case, the motive was over the passage of drain water. Other than that there was no previous dispute or enmity existed between the parties. There was no question of false implication or substitution. The defence plea taken by the appellants i,e, the complainant party was the aggressor one and that the occurrence had taken place in the Haveli of Haq Nawaz, has no legs to stand because not even a single scratch was received by the appellants during the course of occurrence. Even otherwise, no blood-stained earth was taken into possession from the Haveli of Haq Nawaz. It is law of the land that where the eye-witness account was worthy of credence, unimpeachable, confidence inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death and would not constitute mitigating circumstances. This is in line with the law laid down by the August Supreme Court of Pakistan in Waris Khan vs. The State (2001 SCM R 387). This view was further reiterated in yet another judgment of the Apex Court of the country reported in Saeed and 2 others vs. The State (2003 SCM R 747) wherein, at page 753 of the judgment, the August Court observed that Weakness and insufficiency of motive or absence of motive in murder cases cannot be considered as a mitigating circumstance for awarding lesser punishment".
15.It has come on record that all the three appellants, while armed with fire-arms, launched a pre-meditated and pre-concerted attack which resulted into the death of one person Sultan and injuries to other prosecution witnesses. Although learned counsel for the appellant has tried to distinguish the case of Abdul Razzaq and Khalid Mehmood from the case of Amir Khan appellant yet we are not in agreement with his said submission because the prosecution has proved that they committed the said offence with pre-meditation and pre-concern, so, they cannot be absolved from the said liability.
16.After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is the considered view that the prosecution has proved its case against the appellants beyond any shadow of doubt to sustain conviction against the appellants. The evidence produced by the prosecution is trustworthy and reliable. It is upto the standards fixed by the Superior Courts of the country and the law of the land. This Court has scrutinized the case from all important angles and being conscious of the fact that while delivering a judgment in the criminal dispensation of justice, the approach of the Court should always be dynamic one and while doing so, the technicalities and minor contradiction should be overlooked. Resultantly, Cr1. Appeal No, 375/2000 filed by the appellants has not merit which is hereby dismissed and the convictions and sentences awarded to the appellants are maintained in toto. Criminal Revision No, 140/2000 is also dismissed having no merit. Murder Reference is answered in the AFFIRMATIVE and death sentence awarded to Amir Khan appellant is CONFIRMED.