' SALIM KHAN, J.--- An F.I.R. No,594 dated 12-9-2003 of Police Station Daudzai, District Peshawar, was registered on the basis of Murasila dated 12-9-2003 sent by Abdul Bais Khan, S.-I. Against Arifullah under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter called as the Act) regarding the recovery of 1400 grams Charas from the possession of the accused. It was mentioned that the accused was stopped in the field near his house with a black plastic bag in his hand which contained the said narcotic, out of which 4 grams were separated and sealed in a parcel for F.S.L. And the remaining 1396 grams were sealed in another parcel. It was on 10-10-2003 that the samples contraband Charas was received in F.S.L. And the report was given on 28-10-2003.
The samples were, therefore, received by the F.S.L. Peshawar after 28 days of its recovery and the report was given after 18 days of such receipt.
2. Badr-uz-Zaman S.H.O. (P.W.1) had recorded complete challan but was not cross-examined.
Abdul Bais, S.-I. Appeared as P.W.2 and narrated the story of the occurrence and the investigation.
He stated that he had sent the samples to F.S.L. On his application Exh.P.W.2/2, and that the accused was required in case F.I.R. No,487. On cross-examination, he stated that the accused did not try to decamp from the place of occurrence because the police party was present around him The Investigating Officer personally arrested the accused facing trial, the accused was holding the plastic bag in his hand, he had not mentioned the fact of affixing 3/3 seals of monogram BK on the parcels. He also did not remember that how many packets of Charas were recovered and what was the number of the slabs. He had separated the samples through his hands, he had handed over the samples along with application to the Moharrir of police station for sending the samples to F.S.L. And the remaining contraband Charas was also handed over to him, but he did not record the statement of the Moharrir as the custodian of case property. He did not know the name of the person who was the owner of the field, from which the accused was arrested. He also did not remember the time at which the accused was taken to the police station.
3. The Court observations were that "on inspecting the cover/cloth in which the case property has been wrapped it was found that a broken seal is present at one place whereas on the two other places seal is not present, however, mark thereof is present which means that seal has got removed from those two places. On the broken seal monogram is also not complete as portion of the seal is not present. When the case property was opened monogram of BK was found therein.
The case property consists of 15 small slabs, each of which is wrapped in separate plastic cover.
Sample has been taken from all the 15 slabs. All the 15 slabs were collectively wrapped in one plastic cover. On weighing the case property was found to be a few gram less than 1400 grams".
The statement of P.W.2 regarding the same was that due to passage of time and lying in Malkhana, the seals have got removed from the case property.
4. Faridullah H.C. (P.W.3) was the marginal witness of the recovery memo. Exh.P.C. While Ehsanullah A.S.-I. (P.W.4) had recorded the F.I.R., which he accepted as correct and correctly bearing his signature. The prosecution evidence was then closed. Statement of the accused was recorded in which he denied the recovery and pleaded his innocence. After hearing arguments, the accused was convicted under section 9(c) of the Act and was sentenced to 2 years and 6 months' R.I. With a fine of Rs,60, 000, or in default of payment of fine, to undergo 4 months' S.I. The benefit of section 382-B, Cr.P.C. Was, however, extended to the accused.
5. Mr. Shahid Qayum Khattak, Advocate, for the appellant referred which hit the deceased on the backside of head who fell down; that the occurrence was witnessed, including the complainant, by Talib Hussain (P.W.7) and others whereafter all the accused decamped from, the spot and that the deceased was being shifted to the hospital but he breathed his last on the way in consequence to the injuries caused by respondents Nos.8 and 9 with their respective fire-arms. The motive, alleged by the complainant in the F.I.R., was over the construction of culvert.
3. All the nine accused, including the respondents Nos.8 and 9 were summoned by VI.; learned trial Court in the complaint case to face the trial under the charge of murder of complainant's son, where in order to prove its case, the prosecution produced necessary evidence.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.
5. Learned counsel for the appellant, in support of this appeal against acquittal, contended that a specific role was attributed to both the respondents; that the ocular account is corroborated by the' medical evidence; that there was no previous enmity between the parties; that it was a broad- daylight occurrence and no question arises for false implication or substitution; that both the eye- witnesses i,e, P.W.6 Allah Bakhsh and P.W.7 Talib Hussain are natural and reliable witnesses of the case; that although P.W.6 is father of the deceased yet he has proved his presence at the time of occurrence and had no enmity to involve the respondents falsely; that P.W.7 is independent witness whose testimony was also inspiring confidence; that the F.I.R. Was lodged promptly; that the reasons given by the learned trial. Court for their acquittal are fanciful, artificial and based on surmises and conjectures; that although the defence has taken a plea of right of self-defence yet not a scratch was received by the accused persons during the occurrence; that Umar Farooq Bhattia appeared as C.W.2 to state that he found both the respondents guilty during his investigation; that the reasons given for acquittal of the respondents are not tenable in law; that the impugned judgment of acquittal is the result of non-reading and misreading of evidence available on record; that although no interference is called for so far as acquittal of seven acquitted co-accused is concerned but since the case to the extent of the present two' respondents was proved to the hilt, therefore, the learned trial Court was left with no option but to convict them for the murder of the complainant's son but the acquittal of the respondents from the proved case is reflective of non-application of independent judicial mind as well.
6. On the other hand, while defending the impugned judgment of acquittal, learned counsel for the respondents Nos.8 and 9 contended that the prosecution has failed to prove motive part of the prosecution case; that none of the witnesses of earlier quarrel were produced; that in fact it was a case of two versions and the version put forth by the defence was more plausible and convincing; that injury No,1 was not of rifle but of pistol while injury No,2 is a grazing wound which fact has been admitted by the doctor who conducted the post-mortem examination; that it was a case of free fight and every accused was responsible for his individual act; that to the least, the offence would fall under section 302(c), P.P.C. And not 302(b), P.P.C. And he would like to place reliance on Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 272 ; that the occurrence took place in 1994, respondents were acquitted in 1998, present appeal is pending for the last about seven years and it would be harsh to interfere with the impugned judgment at this belated stage; that for the same murder, seven accused persons from the complainant side were challaned, were acquitted, challenged through an appeal which was barred by time and was directed to be heard along with this appeal.
7. We have heard learned counsel for the parties, have gone through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.
8. It was a broad-daylight occurrence took place on 20-5-1994 at 6-00 p.m. Having witnessed by P.W.6 Haji Allah Bakhsh (father of the deceased Muhammad Akram) and P.W.7 Talib Hussain not related. In all nine accused persons were made accused in this case who all were acquitted vide impugned judgment. This appeal was admitted to the extent of only the present respondents Nos.8 and 9 while to the extent of remaining seven acquitted accused persons notice was not issued for the reason that they were allegedly armed with Dandas but no injury was attributed to them on the person of the deceased, therefore, they were rightly acquitted from the case.
9. The prosecution in order to prove its case produced P.W.6 Haji Allah Bakhsh and P.W.7 Talib Hussain. P.W.6 is the father of the deceased Muhammad Akram who, at first lodged F.I.R. And then, having dissatisfied with the police investigation, filed complaint with the similar facts. He was the eye-witness of the case and despite lengthy cross-examination qua seat of injuries at the hands of both the respondents could not be shaken. He has no enmity with the respondents; therefore, his testimony cannot be discarded only on the ground of being father of the deceased. Post-mortem examination; there are two injuries on the person of the deceased. Injury No,1 is'an entry wound on the left cheek leaving exit wound on the back of neck. This injury is attributed to Qamaruzzaman (respondent No,8). Injury No,2 is yet another fire-arm wound on the back of head. This injury is attributed to Sarfraz alias Kakoo (respondent No,9). Muhammad Akram deceased died inconsequence to the receipt of the above fire-arm injuries. Therefore, it can certainly be said that the ocular account is corroborated by the B medical evidence which was further corroborated by the statement of P.W. It is settled law that when the ocular account is corroborated by the medical evidence then the case is proved against the accused. Reliance is C placed on Bundoo v. Mukhtar Ahmad and another PLD 2004 SC 379.
12. It is also settled principle of criminal jurisprudence that mere relationship of a witness either with the deceased or the complainant was not sufficient to discard his testimony unless he was proved to have an ulterior motive for false implication of accused in the commission of offence or had any enmity for doing so. In this regard, we are fortified in our view with a judgment of the august Supreme Court of Pakistan reported in Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663, wherein it was laid down the same principle coupled with the dictum that it was quality of evidence and not its quantity which always settled the guilt or innocence of accused persons. In the said case, the acquittal of the respondent was set aside and they were convicted accordingly.
13. So far as contention of the, learned counsel for the respondents that it was a case of free fight and the accused had a defence version, is neither tenable in law nor in facts because not even a scratch was received by the accused party which factum alone belies the said version of the defence. Even the accused party put a cross-version against the complainant party, the accused mentioned therein were acquitted, appeal was filed against their acquittal which was time-barred, Criminal Miscellaneous No,1564/M of 1998 was filed for condonation of delay which was directed to be heard along with this appeal, the said application came up for hearing along with this appeal but before we could decide the appeal in hand, we proposed to decide the application for condonation for delay at first and the same was dismissed vide separate order of even date as the same was grossly barred by time and the delay was not explained.
14. Argument of the learned counsel for the respondents that the prosecution had failed to prove motive part of the prosecution case is further not tenable for the reason that it is settled by now that existence or non-existence of motive, its proving or non-proving by the prosecution is not fatal to the prosecution case and if the case is proved F through ocular account and the medical evidence, then the conviction can be passed. Reference can be made to the case of the Honourable Supreme. Court of Pakistan reported in Waris Khan v. The State 2001 SCM R 387. The case-law relied upon by the learned counsel for the respondents Ali Muhammad's case (supra) is not applicable in the facts and circumstances of the case as the precedent case-law talks about grave and sudden provocation while no such factor is involved in the present case.
15. After having adjudged the case from every angle, having sifted grain from the chuff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against both the respondents without a shadow of doubt. This Court is fully conscious of the fact that normally the august Supreme Court of Pakistan does not interfere with the judgment of acquittal but where the judgment of acquittal is the result of non-reading or misreading of evidence or leads to miscarriage of justice then it can be interfered. Resultantly, this appeal is allowed, the impugned judgment dated 3-8-1998 passed by the learned Sessions Judge, Faisalabad is hereby set aside and both the accused/respondents No,8 (Qamaruzzaman son of Sharif Hussain) and respondent No,9 (Sarfraz alias Kakkoo son of Iftikhar), are held guilty of the murder of appellant's son, named, Muhammad Akram and are convicted under section 302(b)/34, P.P.C. Each. But there is yet another aspect of the matter. This occurrence took place on 20-5-1994, it took almost four years to conclude the trial, the judgment of acquittal was passed on 3-8-1998, appeal was admitted vide this Court's order, dated 27-3-2000 and is being decided in 2005 meaning thereby that the respondents faced the agony of trial and pendency of appeal for more than ten years. The respondents were acquitted by the learned Court of competent jurisdiction and they were under the legitimate expectancy of life. Considering this aspect of the matter as a mitigating circumstance, we are not inclined to award maximum sentence of death to respondents but they are awarded the sentence of imprisonment for life each. They are further directed to pay a compensation of Rs,1,00,000 to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof they shall suffer S.I. For six months. Benefit of section 382-B, Cr.P.C. Shall be extended to both the convicts. They shall be arrested and be sent to judicial lock-up to serve out their sentences.