' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment shall dispose of Murder Reference No,479 of 2000, Criminal Appeal No,1092 of 2000, Criminal Appeal No,1089 of 2000, Criminal Revision No,492 of 2000 and Criminal Revision No,529 of 2000 as they arise out of the same judgment dated 26-6- 2000 passed by the learned Additional Sessions Judge, Faisalabad, whereby, having tried the appellants in the case registered vide F.I.R. No,690 dated 14-8-1997 under sections 302/324/34, P.P.C. Police Station Jaranwala, District Faisalabad, appellant Muhammad Hanif was convicted under section 302(b), P.P.C. And sentenced to death as Tazir with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased in default whereof six months' S.I. Appellants Ahsan and Hakim Ali were convicted under section 324, P.P.C. Each and sentenced to 7 years' R.I. Each along with Rs,10,000 as fine each in default whereof to further undergo six months' S.I. Ahsan appellant was also convicted under section 337-A, P.P.C. And sentenced to suffer one year's R.I. As Tazir with Rs,10,000 as Daman to be paid to Faqir Muhammad injured. Appellant Hakim Ali was also convicted under section 337-D, P.P.C. To 7 years' R.I. As Tazir with Arsh (1/3rd of the Diyat amount prevalent during the years 2000/2001) to Faqir Muhammad injured. Both of them were given benefit of section 382-B, Cr.P.C. However, Muhammad Shafique co-accused was acquitted from the case after having extended the benefit of doubt. Hence the above-mentioned appeals and revisions.
2. The prosecution story, as unfolded through F.I.R. (Exh.P.E.) registered on the statement of the complainant Muhammad Ramzan (P.W.8), briefly stated is that on the fateful night at the relevant time the complainant, his father Faqir Muhammad, younger brother Muhammad Shafique, Mamoon Muhammad Hanif and Maqbool Ahmad had gone to their lands for taking their turn of water; that when they reached in the middle Watt of Squares Nos.52 and 55, all of a sudden Muhammad Hanif accused armed with .30 bore pistol, Muhammad Ahsan accused armed with a repeater gun, Muhammad Shafique accused armed with .12 bore gun and Hakim Ali accused armed .With .30 bore pistol came there; that Shafique accused raised a Lalkara that none of the complainant party would be allowed to escape; that after hearing Lalkara, complainant's younger brother Muhammad Shafique started running towards the village; that he was followed by Muhammad Hanif accused who ran after him and fired from his pistol hitting him on the right side of the back of chest as a result whereof he fell down; that then Ahsan accused fired from his repeater gun hitting on the face of complainant's father Faqir Muhammad who also fell down and while he was lying down, Hakim Ali accused fired from his .30 bore pistol hitting on the left flank of Faqir Muhammad; that the complainant and others P.Ws. Took shelter behind the bashes; that Muhammad Shafique died due to the above injuries while injured Faqir Muhammad was seriously injured. The motive, alleged by the complainant in the F.I.R., was stated to be a quarrel 8/10 days before the occurrence between the parties.
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 twelve witnesses.
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 Muhammad Hanif contends that the occurrence had taken place in the dark hours of the night; that the identification of the accused was not possible and it was doubtful; that .30 bore pistol recovered from this appellant was not sent to the Fire Arm Expert to ascertain whether the same was functional or not; that the dimension of the injury on the back of the deceased is 1 c.m. x 1 c.m. Which cannot be caused with a .30 bore pistol and if so the same should have of a greater dimension (relied on AIR 1958 All. 255 (V 45 C 58); that the identification of the accused is mainly based on the torch light and the superior Courts have not given due weight to suchlike identifications (relied on 1996 PCr.LJ 231) and that since the prosecution has failed to prove its case against this appellant, he be acquitted.
' Learned counsel for appellants Ahsan and Hakim Ali, after having adopted arguments of the learned counsel for Muhammad Hanif appellants and in addition thereto, submits that as mentioned in the F.I.R., there are not bushes as per site plan prepared by the draftsman; that P.W.12 during the cross-examination submitted that both the injuries could have caused by one fire-arm (relied on 1996 PCr.LJ 231 and PLD 1983 SC 28) to support this contention; that both the appellants were declared innocent during the investigation; that the injury attributed to Ahsan could not have been caused by a repeater gun; 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 submits that the motive furnished by P.W.8 has not been challenged; that the reasons for being present at the spot have fully been proved by the prosecution witnesses; that all the eye- witnesses are natural witnesses; that the injured P.W.9 Faqir Muhammad himself has appeared to corroborate the prosecution case who is a star-witness of the case; that since the prosecution has proved its case against the appellant beyond an iota of doubt, therefore, in the afore-referred circumstances the appeals filed by the appellants against the said judgment are liable to be dismissed.
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. In all four accused were named in the case out of whom Shafique was acquitted from the case as he was only attributed "Lalkara" while the present appellants which are three in number, were convicted variously. All the three appellants were specifically named in the F.I.R. With specific attribution of their respective roles. The ocular account in this case was corroborated by the medical evidence. The occurrence in this case took place on 13-8-1997 at. 8-30 p.m. While the matter was reported to the police at 5-00 a.m., Dr. Tahir Mehmood (P.W.3) conducted the post- mortem examination on 14-8-1997 at 1-45 p.m. The duration given between the death and post- mortem examination was eighteen hours which fully fits in with the time of occurrence. Then there is an evidence of injured P.W.9 Faqir Muhammad who is father of the deceased. He got two injuries on his person i,e, one on his face and the other on abdomen. Being injured of the occurrence, he is the star-witness of the case before whom the whole occurrence took place. He has fully implicated all the three appellants in the occurrence and despite lengthy cross-examination nothing could be shaken from his testimony. He has no enmity for false implication or substitution of the real culprits.
His testimony is confidence inspiring. It is settled law of the august Supreme Court of Pakistan that in absence of any enmity or to falsely implicate the accused, testimony of a closely related witness is believable and cannot be discarded merely on the basis of his relationship. Although he is father of the deceased yet he is injured eye-witness and natural witness of the case. The ocular account furnished by the prosecution is corroborated by the medical evidence.
9. As far as the question of declaration of innocence of Ahsan and Hakim Ali appellants by the police is concerned, we may observe that ipsi dixit of police is not binding on the Courts. Even the said appellants failed to produce a single defence witness in support of the said contention; therefore, the same is of no avail to the said appellants at this stage.
10. Much stress was laid upon the argument of, identification of the appellants during the course of occurrence which has no force for the reason that it is settled by, now by the apex Court of the country that when the parties are known to each other no question regarding their identification arises. In the case in hand the parties are known to each other and the accused persons are named in the F.IR.. With their specific roles, therefore, this argument is not tenable in law or facts.
Moreso, when the source of light i,e, the torch was produced by the complainant as P.8 which was taken into possession vide memo. Exh.P.H.
11. As far as motive is concerned, that was never challenged by the accused which stands proved.
Not even a single suggestion was put to the eye-witnesses regarding false implication of the appellants in the present case. Even in their statements recorded under section 342, Cr.P.C. Nothing has been said which could appeal to the mind of a man of normal prudence. There was no previous background of enmity between the parties.
12. As tar as the main contention of the learned counsel for the appellant Muhammad Hanif, that dimension of injury is greater than the dimension of the bullet used in .30 bore pistol, is concerned, is of no avail to the appellants' case at this stage because neither any question about it was asked to the doctor who conducted the post-mortem examination nor any application was preferred to summon the Fire Arm Expert to substantiate this factum. Moreso, this appeal is pending for the last five years but not even application under section 428, Cr.P.C. Was moved in this regard. Even otherwise, we may mention here that in one inch there are 2.45 c.Ms. While the injury in question is 1 c.m. x 1 c.m. And though its discussion at this belated stage would be of no relevance yet for the sake of arguments it is observed that this injury could have been caused with a .30 bore pistol used in the occurrence and as stated by the prosecution witnesses before the learned trial Court. Even otherwise, it is cardinal principle of the criminal jurisprudence that the approach of the Court should always be dynamic and while doing justice the technicalities should not be given much weight and the case should always be decided keeping in view the facts which may have bearing effects on the merits of the case.
13. 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 eye-witness account furnished by the prosecution has come through an unimpeachable sources having no interest or enmity to falsely involve the appellants in the present case. We see no reason to discard their testimony which is independent, natural and confidence inspiring. It is a case in which the ocular account is corroborated by the medical evidence and the prosecution has proved its case against all the appellants beyond a shadow of doubt. It is well-settled by now that when a case is proved against the accused to the hilt and until and unless strong reasons for the award of lesser sentence are not coming forth, it is bounden duty of the Court to award maximum sentence especially in the cases of murders and normal penalty for the murder or death. It is cardinal principle of the criminal jurisprudence and is also consistent view of the august Supreme Court of Pakistan that it is the quality and not the quantity which should weigh with the Court H while evaluating evidence brought from both the sides on the record. We see no mitigating circumstance in this case in favor of appellant Muhammad Hanif even for the award of lesser.
Sentence. Respectfully, following the principles enunciated by the apex Court of the country' from time to time and conscious of the duties on the shoulders of this Court, we find that the prosecution has proved its case to the hilt against all the three appellants. The precedent case-law relied upon by both the learned counsel for appellants is of no help to them as the facts and circumstances discussed and given therein are distinguishable from the facts of the present case. Resultantly, Criminal Appeal No,1092 of 2000 and Criminal Appeal No,1089 of 2000 filed by the three appellants are hereby dismissed having no merit and their convictions and sentences are maintained in toto, while, for reasons recorded above, Criminal Revision No,492 of 2000 and Criminal Revision No, 529 of 2000 are also dismissed having no force. Nutshell of the result is that the Sentence of death awarded to Muhammad Hanif appellant is confirmed and Murder Reference No,479 of 2000 filed for confirmation of his death sentence is answered in the affirmative. Appellants Hakim Ali and Ahsan are on bail and since their appeals against the convictions and sentence recorded against them have been dismissed, they shall be taken into custody by the relevant authorities to serve their remaining part of the sentences.
14. Before parting with the judgment, we may observe that no plausible reason has been given by the learned trial Court for not convicting appellants Hakim Ali and Ahsan under section 302/34, P.P.C. Although it was incumbent upon the learned trial Judge to give strong reasons for not doing so. Unfortunately, neither the complainant nor the State have filed appeal against their acquittal from the murder charge. In our view the learned trial judge has not applied its independent judicial mind to the above extent and has failed to discharge his duties, while deciding a criminal case like the one in hand, and has overlooked the golden principles enunciated by this Court as also by the apex Court of the country. A copy of this judgment shall be sent to him for future guidance.