' IJAZ-UL-HASSAN KHAN, J.---Appellants Amir Muhammad and Muhammad Ibrahim sons of Khanan, residents of Pandheri, District Mardan, were tried in case F.I.R. No,168 dated 30-5-2002 registered under sections 302/324/34 P.P.C. At Police Station Chora, by learned Sessions Judge Mardan, on the allegations of having, on the said date at 19.00 hours near the house of Nawaz Khan in deh Pandheri, along with the absconding co-accused Najad son of Daraz Khan in furtherance of their common intention, committed 'Qatli-i-Amd' of Mani son of Anwar resident of Taru Mardan and attempted murder of complainant Shad Muhammad on of Dost Muhammad by firing. At the conclusion of trial, vide judgment dated 16-6-2004, the appellants were convicted under section 302(b)/34 P.P.C. And sentenced to imprisonment for life each with compensation of Rs,50,000 as required under section 544-A Cr.P.C. The amount of compensation, on realization was directed to be paid to legal heirs of 'the deceased or in default thereof to undergo further six months S.I. Each.
The appellants were also convicted under section 324/34 P.P.C. For inflicting injuries on the complainant Shad Muhammad and sentenced to suffer 5 years' RI with fine of Rs,10,000 each or in default of payment of fine to undergo two months' S.-I. Further. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellants.
2. The appellants feeling aggrieved have challenged their conviction and sentences through the present Criminal Appeal No,527 of 2004 which is before us for consideration.
3. The crime in question is alleged to have taken place on the date, time and the place of occurrence mentioned above and the report about it was lodged the same day at DHQ 'Hospital Mardan at 1930 hours by complainant. Shad Muhammad and it was recorded by A.S.I. Fazal Malik P.W.1 in the shape of 'murasila'. The 'murasila' was sent to Police Station Chora where it was incorporated into F.I.R. Exh.P.A by A.S.-I. Sabz Ali Khan, P.W.S.
4. Giving the account of the incident Complainant Shad Muhammad P.W.8 informed the police that he had sold Oxen to one Qaisar son of Mohayuddin of his village for Rs,11800. On the day of occurrence, he along with Mani deceased had gone to the house of Qaisar for recovery of the said amount, where Amir Muhammad and Muhammad Ibrahim (appellants) and Najad son of Daraz Khan of his village, (absconding co-accused) duly armed were found present. On seeing the complainant party they made queries as to why they had come. The complainant stated that they have come to receive sale price of Oxen from Qaisar. Thereafter all the accused persons resorted to firing at the complainant party as a result of which complainant and Mani received injuries. Mani died there and then. After accomplishing the mission, the accused made good their escape.
Complainant, his son Akbar Hussain- and brother Nek Muhammad were stated to have witnessed the occurrence.
5. Appellants Amir Muhammad and Muhammad Ibrahim are brothers inter se whereas Nijad absconding co-accused is their nephew.
6. A.S.-I. Fazal Malik P.W.1 after recording report, prepared injury sheet Exh. P.M. Of the complainant and referred him to the doctor for treatment. In the meanwhile dead body of Mani deceased was also brought to the hospital. He prepared injury sheet Exh. P.M/1 and inquest report Exh. P.M/2 of the deceased and dispatched the dead body to the mortuary for post-mortem examination under the care of FC Nadeem Hassan P.W.9
7. S.-I. Shaukat Ali P.W.10 on receiving the copy of F.I.R. Exh.P.A., proceeded to the spot, prepared site plan Exh.P.B. At the instance and pointation of eye-witnesses, took into possession bloodstained earth from the place of deceased and sealed the same into parcel vide recovery memo. Exh.P.C/2.
He also took into possession 5 empties of .30 bore Exh.P.4 lying in scattered position from the places of accused vide recovery memo. Exh. P.C/4. The last-worn clothes of the deceased brought by FC Nadeem Hassan from the hospital, were also taken into possession vide recovery memo. Exh.
P.C. The empties recovered from the spot and blood-stained clothes of the deceased were sent to the laboratory and reports (Exh. P.K.4 and Exh. P.K.5) received were placed on the file. As the accused persons were not available F.C. Muhammad Irshad P.W. 11 was entrusted with the warrants of arrest against them under section 204 Cr.P.C. The warrants were returned unserved with the reports Exh. P.W. 11/1. 11/2 and Exh. P.W.11/3. Subsequently the appellants were arrested on 18-6-2002 by A.S.-I. Karim Shah P.W.2. After completion of investigation, in the manner described above, challan was submitted against the accused in Court.
8. During the trial, prosecution in order to prove its case produced 11 witnesses in all. The ocular account was furnished by, complainant Shad Muhammad P.W.8 and his son Akbar Hussain P.W.9.
They; supported the version of the F.I.R. And narrated the occurrence.
9. Dr. Muhammad Qaisar (P.W..6) Medical Officer, Rural Health Centre. Shahbaz Garhi, Mardan on 30-5-2002 at about 1935 hours examined injured Shad Muhammad and found two entrance wounds and two exit injuries on his person caused by fire-arm.
' On the same date at 1950 hours Dr. Muhammad Qaisar P.W. Conducted autopsy, on the dead body of deceased Mani aged about 35/36 years and noted the following:-- EXTERNAL EXAMINATION.
"(1) F. Arm entry wound about 1/6" x 1/6" on the middle part of the lateral aspect of the right upper arm.
(2) Corresponding fire-arm exit wound about 1/4" x 1/4" on the medial aspect of the right upper arm about 2" below the right axilla.
(3) F.A. Entrance wound about 1/6". x 1/6" on the, right side of the chest in the interior axillary line, about 2" below the right axilla,
(4) Corresponding F.A. Exit wound about 1/4 x 1/4" on the right side of chest, about 2" away from the upper part of the right border of the sternum, parallel to wound No,3.
(5) One F.A. Entrance wound on the back of the abdomen on spinal cord at the level of 12th thoracic vertebrae.
(6) Corresponding F.A. Exit wound about 1/6" x 1/6" on abdomen above the umbilicus.
(7) F.A. Entrance wound about 1/4" X 1/4" on the middle of the interior aspect of the right thigh.
(8) Corresponding. F.A. Exit wound 1/2" X 1/2" on the middle of the posterior aspect of the right thigh.
(9) F.A. Entry wound about 1/4" X 1/4' on the posterior aspect of the left thigh.
(10) Corres: F.A. Exit wound 1/2" X 1/2" on the interior aspect of the left thigh.
INTERNAL EXAMINATION.
Thorax. Walls, Ribs injured. Blood vessels injured.
Abdomen. Walls, peritoneum, small and large.Intestine, injured.Stomach injured, contained semi- digested food.
Opinion: In the opinion of the Doctor, the cause of death was due to injuries to the spinal cord, stomach, large intestine caused by firearm leading to haemorrhage and death. Time between injury and death immediate, while between death and P.M. Within one hour.
10. The accused were examined under section 342 Cr.P.C. In which they took up the plea that they have been falsely implicated in the case owing to the fact that complainant and deceased Mani along with others had come to the house of. Qaisar. In the meanwhile, firing started between them as a result of which Ijaz was hit. The injured reported the matter vide F.I.R. No,169 dated 20-5-2002 under section 324/34 P.P.C. At Police Station Chora Mardan.
11. The appellants did not examine themselves on Oath or led any evidence in their defence.
12. On the basis of evidence brought before the trial Court, it came to the conclusion that the charges against the appellants have been proved to the hilt, consequently the appellants were convicted and sentenced in terms stated herein above.
13. Appearing on behalf of the appellant Mr. Javed A. Khan Advocate contended with force that the ocular version furnished by P.Ws. Shad Muhammad and Akbar Hussain is not only based on related and interested witnesses but is highly contradictory inter se; that presence of Akbar Hussain P.W.
Has not been established and sole testimony of Shad Muhammad complainant is not sufficient to sustain conviction; that there is no independent and impartial witnesses to corroborate the prosecution story and that the alleged incident has taken place in a thickly-populated area and a large number of co-villagers of the complainant are stated to have been attracted to the spot immediately after the occurrence and helped P.W. Akbar Hussain to remove his injured father P.W.
Shad Muhammad to the hospital, but no disinterested and impartial witness has been produced at the trial to corroborate the prosecution story. The learned counsel also contended that the medical evidence and ocular account being at complete variance, the conviction recorded against the appellants was not maintainable at all. There is a glaring contradiction between the said evidence and the ocular account. The learned counsel reiterated that the mere fact that there was no apparent reason for the complainant to have falsely implicated the appellants is not, by itself, sufficient to maintain conviction and sentences of the appellants. The whole prosecution case is shrouded in mystery and is full of doubts appearing at every step and the motive set up in the F.I.R.
Has not been satisfactorily established. Even otherwise when the substantive evidence in the shape of eye-witness account is not free from doubt, then the corroborative evidence of recovery and medical evidence if plausible is of no avail to the prosecution. The learned counsel contended that it will not be safe to maintain the conviction of the appellants on this quality of evidence in spite of its quantity. The injured witness made an outright departure from the original story by modifying it at every step. Delay in the F.I.R. Shows an element of consultation on the part of the complainant before registration of the case. The trial Court has unfortunately failed to examine the evidence with care and attention that it deserved. On these premises the learned counsel contended that the case against the appellants is totally of no evidence and the learned Judge has failed to apply his judicial mind to the facts of the case and the appellants are entitled to a finding of acquittal. To supplement the contentions, reliance was placed on Muhammad Hayat and another v. The State (1996 SCM R 1411), Ahmad Nisar v. The State (1977 SCM R 175), Zaab Din and another v. The State (PLD 1986 Peshawar 188), Zar Bahader v. The State (1978 SCMR 1936) and Nabi Bux and another v. The State (1990 PCr.LJ 1018).
14. Mr. Ahmad Zeb Khan, Advocate representing the State assisted by Mr. Muhammad Salim Khan; Advocate for the complainant, on the other hand, fully supported the impugned judgment and submitted that the appellants and the absconding co-accused stand directly nominated in the promptly lodged report for firing at the complainant party resulting into the murder of Mani deceased and injuries sustained by the complainant. The occurrence was witnessed by the natural witnesses, who had no enmity against the appellants to substitute them for unknown culprits. The motive has been proved and there is no vital contradictions between the statements of the P.Ws.
Medical evidence and recoveries of crime empties from the spot fully supported the charge to augument the contentions. Reliance was placed on Alimadad v. The State (2002 PCr.LJ 1785 Peshawar), Nawab Khan and 2 others v. Afsar Khan and another (2001 PCr.LJ 637 Peshawar), Muhammad Haleem v. Sahib Din and another (2003 PCr.LJ 651, Peshawar), (PLD 2004 Peshawar 143), Muhammad Ashraf and another v. The State (PLD 2004 SC 539) and Mawas Khan v. The State and another (PLD 2004 SC 330).
15. We have examined the evidence with care with the assistance of the learned counsel but unable to say that the appreciation of evidence by the trial Court suffers from any misreading or non-reading of any material evidence.
16. The prosecution case is supported by evidence of Shad Muhammad complainant P.W.8 and his son Akbar Hussain P.W.9. The complainant is an injured witness. He has reiterated the allegations set up in the F.I.R. Along with the motive. Akbar Hussain P.W. Corroborated the statement of the complainant. Accused used fire-arms during the occurrence. Dr. Qaisar P.W.6 conducted the post- mortem examination on the dead body of Mani deceased and found injuries caused by fire-arm resulting into the death of the deceased. The ocular account is corroborated by the medical evidence and the alleged motive. Admittedly, complainant is an injured witness and the fire-arm injuries cannot be said to be self-inflicted. Both the witnesses have established that they were present at the spot and have witnessed the occurrence and have consistently stated that the appellants and absconding co-accused, are the real culprits, who had fired at the complainant and deceased Mani. The statements of these witnesses are consistent on material points. The defence has failed to gain anything out of the lengthy cross-examination upon these witnesses.
They are natural witnesses and their presence at the spot cannot be doubted at the time of occurrence, hence in the absence of any material discrepancies in their statements there is no reason to disbelieve them. Minor discrepancies occurring in the statements of the witnesses cannot be of any consequence when the case against the appellants has been proved by consistent and confidence-inspiring evidence. Wilayat v. The State (2002 SCM R 53).
17. The report of the incident was lodged in the hospital within 35 minutes of the occurrence, containing all the material facts relating to the crime in question, the distance between the sport and the hospital being 14/15 kilometers. Counsel for the appellants contended that there was clearly delay in lodging the report which was indicative of primary investigation by the Investigating Agency and that, therefore, such managed delay adversely affected the prosecution case. Reference was made to Mahmood Ahmad and 3 others v. The State and another (1995 SCM R 127). The submission of the learned counsel is not tenable. The occurrence having taken place on 30-5-2002 at 1900 hours, matter was reported to the police the same day within 35 minutes of the occurrence by complainant Shad Muhammad, brought to the hospital in injured condition. The delay in reporting the occurrence per se is no ground to discard the prosecution case as false and concocted. Having regard to facts and circumstances of the case we are of the view that the F.I.R.
Was lodged without wasting any unnecessary time and argument of the learned counsel that the same was registered after consultation and deliberation has no force.
18. Prosecution need not examine every witness cited as such in the F.I.R., therefore, no adverse inference can be drawn against it if a witness not necessary in the wisdom of the prosecution is not produced. Saeed Akhtar and others v. The State (2000 SCM R 383).
19. It has been vehemently contended by learned counsel for the appellants that the motive set up in the F.I.R. Has been subsequently changed at the trial and a new motive has been introduced i.e, the accused-appellant had stolen the cattle of the brothers of the complainant on account of which the parties were at dagger drawn with each other. It is true that the motive set up by the prosecution may not have been successfully proved, but the recent view of the apex Court is that even where the prosecution sets up a motive and is unable to prove it still conviction can be based on it provided the testimony of the eye-witnesses is trustworthy and confidence-inspiring.
20. It is well-settled that the weakness of motive or its complete absence would be wholly immaterial in a case where ocular testimony of an unimpeachable character is available in support of the prosecution case. Syed Mushtaq Ahmad v. Sadiqullah and others (PLD 1975 SC 160).
21. The evidentiary value of motive came up for consideration before a Division Bench of the Lahore High Court in case reported as Allah Bakhsh and others v. The State (1976 PCr.LJ 1272) wherein it was held that:-- "Moreover, it is settled law that the absence of motive or presence of weak motive does not provide reason for the Court to disbelieve direct evidence of the main incident if that evidence is otherwise worthy of credit and can form sound basis for conviction of the accused."
22. Similarly in Ahmad Nisar v. The State (1979 SCMR 175) it has been observed that:-- "Generally speaking motive, more or less is a guess on the part of the prosecution witnesses. What truly motivated an accused person to commit a crime is best know to him and not to others."
23. Even otherwise nothing turns on the weakness, if any, of the prosecution story or the motive. It is established rule that absence of motive or failure of the prosecution to prove motive does not adversely affect the testimony of the eye-witnesses if they are otherwise reliable and truthful.
24. Having adjudged the matter from all angles, we feel that the trial Court had taken the correct view and followed the principles laid down by the superior Courts for safe administration of justice: There was'no delay in reporting the occurrence and, in any case, delay per se would not adversely affect the truthfulness of the prosecution case. The presence of eye-witnesses at the time and place of occurrence is established at least insofar as one of them Shad Muhammad is concerned, who had the stamp of fire-arm injuries on his person. No doubt it is true that merely because the P.W. Had stamp of fire-arm injuries on his person was not per se tantamount to a stamp of credence on his testimony, as held in Zaad Din and another v. The State (PLD 1986 Peshawar 188) but it is equally true that P.W. Shad Muhammad complainant has given a correct and straightforward account of the incident and deposed truly what was seen by him. The learned trial Judge correctly evaluated the evidence on record and found the appellants guilty beyond reasonable doubt. We, therefore, find no ground to interfere in the impugned judgment which is based on sound reasoning. The appeal fails which is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.