' KHAWAJA MUHAMMAD SHARIF, J.--- This appeal is directed against the judgment, dated 23-11- 2000 passed by the learned Sessions Judge, Mianwali, whereby, having tried the appellants in the case registered vide F.I.R. No,151 dated 7-12-1999, under sections 302/324/148/149, P.P.C., Police Station Kamar Mashani, District Mianwali, the appellants were convicted and sentenced variously i,e, under .Section 302(b)/34,. P.P.C. Muhammad Ashraf appellant was convicted and sentenced to death while appellants Amir Abdullah and Abdullah were sentenced to life each with a further direction to all the three appellants to pay Rs,50,000 each as compensation to the legal heirs of the deceased in default whereof to suffer six months' S.I. Each under section 324/34, P.P.C. For causing injury to Asmatullah P.W. All the three appellants were convicted and sentenced to seven years' R.I.
Each with a fine of Rs,20,000 each in default whereof to further undergo six months' R.I. Each.
Sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to Amir Abdullah and Abdullah appellants. Criminal Appeal No,1756 of 2000 filed by the appellants, Murder Reference No,41 of 2001 sent by the learned trial Court and Criminal Revision No,915 of 2000 filed by the complainant for enhancement of sentence of the appellants are being disposed of through this single judgment as they arise out of the same case.
2. The prosecution story, as unfolded through F.I.R. Registered on the statement of the complainant Muhammad Hanif (P.W.7), briefly stated is that on 7-12-1999 he along with Rafiullah deceased were coming from Kamar Mashani on motorcycle which was driven by him and Rafiullah'deceased was sitting on the rear seat; that Shameer Khan and Abdul Aziz P.Ws. Were coming behind them on a tractor and when at about 4-30 p.m. They reached near the house of Muhammad Jan, they saw accused Muhammad Ashraf, Amir Abdullah and Abdullah armed with .12 bore guns, Hameedullah armed with rifle Faiz Muhammad armed with rifle 5 shots, Jahangir armed with .12 bore gun, Hayatullah (P.O.) armed with .12 bore gun, Habibullah armed with .30 bore pistol and Ziaullah armed with .12 bore gun, emerged from the road side; that Jahangir accused raised a Lalkara that they had come to avenge the insult of Habibullah Khan accused on which Amir Abdullah accused fired the first shot hitting Rafiullah on his right arm; that the complainant tried to speed up the motorcycle but stopped at some distance and came down from the motorcycle when Muhammad Ashraf accused fired which hit Rafiullah on his backside; that Abdullah Khan accused also fired which hit Rafiullah on his both thighs; that the remaining co-accused made indiscriminate firing but the complainant took the shelter while laying beside the road side; that in the meanwhile, Asmat Ullah injured P.W. Came running from his land where he was irrigating the same and Hayatullah accused (P.O.) fired at him which hit him on his abdomen and he fell down; that thereafter the accused decamped from the spot. The motive, alleged by the complainant in the F.I.R. Was that a month prior to this occurrence Rafiullah deceased had a quarrel with Habib Khan accused and had slapped him.
3. After having completed usual formalities and investigation of the case, the police submitted challan against the accused before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 9 witnesses.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case, attributed involvement in the present case to false implication and claimed trial.
5. Learned counsel for the appellants, in support of this appeal contended that there is five hours delay in lodging the F.I.R. Which is full of contradictions, consultation and deliberations; that the number of the F.I.R. Is missing in the inquest report and the brief facts of the case; that both the eye-witnesses are closely related to the deceased and their testimony cannot be relied on; that there is enmity between the parties, that the occurrence had taken place during the dark hours of the night and there was no possibility of having recognized the real assailants; that the occurrence in-question was an unwitnessed one; that in the presence of fecal matter in the large intestine of the deceased proves the same fact; that as far as injured Asmatullah is concerned, he was examined at 7-25 p.m. And the duration given by the doctor is one hour which also proves the fact that the occurrence had taken place during the dark hours of the night; that only from one place blood-stained earth was taken but no blood-stain was taken from the place where Asmatullah was injured; that even no trail had been shown between the place of the deceased and the injured P.W.; that P.W.7 Muhammad Hanif complainant works in a Bank at Kamar Mashani which is 50 kilometers away from his house and, 4 kilometers away from the place of occurrence, his office timings were from 9-00 a.m. To 5-00 p.m. While the occurrence had taken place at 4-30 p.m. And it was not possible for him to reach at the place of occurrence in such a short span of 15 minutes while according to his own statement he met deceased Rafiullah at Kamar Mashani at 4-15 p.m.; that the eye-witness account has not been believed qua the five acquitted co-accused and it will be unsafe to place reliance on the same eye-witnesses qua the appellants. He relied on PLD 1959 SC 109 in support of the above contention.
' So far as motive of the case is concerned, learned counsel for the appellants submits that the prosecution has failed to prove the same; that no evidence was furnished to corroborate the same either during the trial or before the police and the police himself did not investigate the same. Adds that it will be a big point in favor of the appellants for their acquittal or at least as an alternate death sentence of Muhammad Ashraf appellant cannot be maintained. Further contends that nine persons were firing and it is not safe to state that it was the shot of Muhammad Ashraf appellant which proved fatal. Relied on 1984 SCM R 1069. While advancing his submission, learned counsel for the appellants submits that according to the prosecution case three persons were firing at the deceased but the doctor, during the cross-examination, stated that the possibility that the deceased received two fires only cannot be ruled out.
' While concluding his submissions, learned counsel for the appellants submits that there are doubts and doubts in the statements of the prosecution witnesses and the evidence produced by it was- not of such quality to sustain conviction on a capital charge; that there is no corroborative evidence in this case; that the impugned judgment has been passed against the weight of evidence on record; that it is based on surmises and conjectures; that the prosecution has failed to prove its case against the appellants beyond reasonable doubts and that, in the afore-referred circumstances, the appellants are entitled to acquittal from this Court.
6. On the other hand, while defending the impugned judgment of conviction, learned counsel for the State assisted by learned counsel for the complainant while arguing the criminal revision as well, submits that all the three appellants were more than 22, 25 and 33 years of age; that they left their house while armed with deadly weapons to commit the murder of the deceased in which they also caused injuries on the person of injured P.W.; that at the time of occurrence the deceased was about 18 years of age while the injured P.W. Was a student of 7th Class; that all the appellants have committed the offence with their common intention having attributed specific shots, therefore, the learned trial Court was wrong in not awarding sentence of death to appellants Amir Abdullah and Abdullah Khan. After having referred to Article 21 of the Qanun-e-Shahadat Order, 1984 and having relied on 1973 PCr.LJ 896, contends that the subsequent conduct of the accused persons is very much relevant as the occurrence took place on 7-12-1999 but the accused persons were arrested on 28-12-1999 although both the parties belong to the same village; that the F.I.R. Was lodged promptly; that the time of receiving injuries and death is two hours; that Asmatullah was medically examined at 7-25 p.m. And the dead body was also being accompanied the said Asmatullah injured P.W.; that no question was asked by the learned defence counsel to anyone of the P.Ws.
About the distance between Mianwali where the hospital is situated and the Kamar Mashani where the occurrence took place; that the utmost duty of the complainant was to save the life of his brother Rafiullah and Asmatullah and it was only after getting him free from the said process that he reported the matter to the police station which was but natural; that the medical evidence is supported by the ocular account; that as far as contents of stomach of the deceased is concerned, no question was put to any P.W. As to when the deceased took his last meal; that the time of digestion of each individual is different; that the complainant left his Bank at 3 p.m., reached Kamar Mashani at 4-15 p.m. So he covered the distance of 50 kilometers within a period of one hour and fifteen minutes which is believable; that Asmatullah P.W. Is an injured witness of the case so he is natural one which was not challenged by the defence; that his presence at the place of occurrence is also corroborated from other factors as his land is adjacent to the place of occurrence to which he was irrigating the same at the relevant time; that not a single question was put to any of the eye-witnesses that who was riding the motorcycle and who was sitting on the rear seat; that if both the deceased and the injured P.W. Had received injuries while sitting on the motorcycle then they must had received some abrasions and contusions by falling down on the ground from the motorcycle and that the motorcycle was taken into possession vide memo.
Exh.P.O. Which has signs of pellets on it.
' So far as motive is concerned, learned counsel for the complainant submits that it is always a double-edged weapon and is always in the mind of the accused; that the complainant has no direct enmity with the appellants; that it is a day time occurrence and if the ocular account is believed then there is no mitigating circumstance to award lesser sentence. Relied on 2003 SCM R 1230. While relying on the same above precedent case-law, learned counsel for the complainant submits that in the instant case specific injuries have been attributed to the appellants and the fatal injury is attributed to Muhammad Ashraf appellant and that since the prosecution has proved its case against the appellants beyond an iota of doubt, therefore, in the afore-referred circumstances the appeal filed by the appellant against the said judgment is liable to be dismissed rather sentences of Amir Abdullah and Abdullah Khan are liable to be enhanced to normal penalty of death as well.
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. Occurrence in this case had taken place at 4-30 p.m. On 7-12-1999. First of all the complainant along with others attended the injured persons to shift them to the hospital for treatment where Rafiullah died and Asmatullah injured P.W. Was medically examined at 7-25 p.m. i.e immediately after his arrival in the hospital. So the act of the complainant in attending the injured persons first, to make arrangements for shifting them to the hospital and then to report the matter to the police station was natural one. Although on the same set of evidence five co-accused of the present appellants, namely, Ziaullah Khan, Jahangir Khan, Hameedullah Khan, Ghulam Habib and Faiz Muhammad were acquitted from the case because no injury was attributed to either of the deceased or the injured P.W. It is common that in such-like cases, in this part of the country, along with the main accused persons, near relations are also involved so that nobody would remain to pursue the case and it has happened in this case. One of the co-accused, namely Hayatullah is still at large and was declared as Proclaimed Offender. He was attributed injury on the person of Asmatullah injured P.W. Which landed in abdomen. All the three appellants were attributed specific injuries while injury attributed to Muhammad Ashraf appellant on the person of deceased which proved fatal in consequence whereof he died. Dr. Mehr Khan (P.W.1) medically examined Asmatullah injured P.W. At 7-25 p.m. He gave duration between the injury and the medical examination two to five hours which fits him with the time of occurrence. Dr. Muhammad Zaheeruddin (P.W.3) conducted the post-mortem examination on the dead body of the deceased on the same day at 11-50 p.m. The duration between the injuries and the death was within two hours and between death and the post-mortem examination three to seven hours. Both these durations also fit him with the time of occurrence. We are of the opinion that there was no direct enmity between the appellants and the complainant party. The star-witness in this case is Asmatullah who is an injured P.W. And the injuries suffered by him cannot be termed as self- suffered because the seat of the same is abdomen. The number of the injuries on the person of the deceased shows that it was job of more than one person. The absence of blackening on the person of the deceased and the injured shows that the fires were shot from a distance and not from a close range. Learned counsel for the appellants, while arguing the case, had submitted that the time of information of this occurrence was not mentioned either in Column No,3 of the inquest report or the brief facts, has no force because it can be termed as negligence or inefficiency on the part of the Investigating Officer. So in our opinion ocular account is corroborated by the medical evidence. The principle in such-like cases is to sift grain from the chaff which has already been done by the learned trial Court and not to go into technicalities. The approach of the Court should always be dynamic. This is in line with the law laid down by the august Supreme Court in State through Advocate-General Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1, wherein at page 19 of the judgment, it was observed by the apex Court that "the approach of the Court in matter like the case of kidnapping for ransom should be dynamic and if the Court is satisfied that the offence has been committed in the manner it has been alleged by the prosecution the technicalities should be overlooked without causing any miscarriage of justice".
' Asmatullah injured P.W., at the time of occurrence, was a student of 7th class while the deceased was eighteen years of age. On the other hand, all the three appellants are, 22, 25 and 33 years of ages. The said injured P.W. Had no direct enmity with the appellants whatsoever; therefore, there was no question of false implication. His statement was recorded in the hospital in the next morning. He had fully implicated the present appellants with their specific roles.
' As far as motive is concerned, law of the land is 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 v. 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 v. 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".
' It is also settled by now that the Courts have to weigh with the quality of evidence and not of the quantity. We are fortified with a judgment of the august Supreme Court of Pakistan reported in Allah Bakhsh v. Shamji and others PLD 1980 SC 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".
' For the sake of arguments, if it is presumed that Muhammad Hanif complainant was not present but the fact remains that Asmatullah was there who is an injured witness of the case and has fully supported the prosecution case to bring home the guilt of the appellants.
9 . After having adjudged the case from every angle, having sifted grain from the chaff, after having applied independent judicial mind, having gone through the precedent case on the point, this Court is of the considered view that there is no mitigating circumstance in favor of any of the three appellants. Resultantly, this criminal appeal is dismissed, the convictions and sentences awarded to the appellants by the learned trial Court are maintained in their totality, the sentence of death of appellant Muhammad Ashraf is confirmed and Murder Reference is answered in the affirmative. As far as Criminal Revision No,915 of 2000 is concerned, since injuries attributed to Amir Abdullah and Abdullah Khan did not prove fatal so the convictions and sentences already awarded to them are sufficient to meet the ends of justice. Hence the criminal revision is also dismissed.