' IJAZ-UL-HASSAN KHAN, J.---Accused-respondent Dost Muhammad son of Wali Muhammad, aged about 70 years, resident of Sher Pao, Tehsil and District Charsadda, was tried in case F.I.R. No,312 dated 6-6-1996, Police Station Umerzai, Charsadda by learned Additional Sessions Judge/Judge Special Court, Charsadda, for offences under sections 302/324, P.P.C. At the conclusion of trial, vide judgment ,dated 15-3-1999, accused-respondent was extended benefit of doubt and acquitted of the charges.
2. Feeling aggrieved, State, through Advocate-General, N.-W.F.P., Peshawar has preferred Criminal Appeal No,88/1999, challenging the impugned judgment of acquittal.
3. The crime in question, culminating into the murders of Hayatullah and Shah Faisal deceased, is alleged to have taken place on 6-6-1996 at 1230 hours on Tangi Umerzai Road, Obaidullah Koroona, Sherpao, in the precinct of Police Station, Umerzai Charsadda. The report (Exh.PA/1) about it was lodged the same day at 1300 hours at the spot by complainant Kifayatullah (P.W.9) and it was recorded by ASI Safdar Ali (P.W.11), who happened to be on a routine `gasht' of the area.
4. The prosecution story in brief is, that on the fateful day, the complainant along with his brother Hayatullah, (deceased), and cousins Shah Faisal (deceased) and Saifur Rehman P.W., was on the way to the `Hujra' of Ajun Khan resident of Obaidullah Killi, Tangi Charsadda Road to attend a Jirga.
When they reached near the venue of occurrence, accused-respondent Dost Muhammad, a `phoophizad' of the complainant, reached there in his Datsun and parked the same on road side.
He took out his Klashnikov and started firing at the complainant party, as a result of which Hayatullah and Shah Faisal were hit and died at the spot. However, the complainant and P.W. Saifur Rehman escaped unhurt. A dispute over the `Mastoorat' was stated to be the motive behind the occurrence.
5. Preceding registration of case, Safdar Ali Khan (P.W.11), prepared injury sheets and inquest reports of the deceased and referred the dead bodies to the mortuary for post-mortem examination under the escort of F.C. Said Rehman (P.W.7). He prepared site plan Exh.PB at the instance of the complainant and other eye-witnesses, collected blood-stained earth from the places of the deceased and sealed the same into parcels, vide recovery memos. Exh.PW.10/1 and Exh.PW.10/2.During spot inspection, he recovered 14 empties of 7.62 bore Exh.P.6 and sealed the same into parcel, vide recovery memo. Exh.PW.10/3. Meanwhile S.H.O. Muhammad Israr Khan (P.W.8) reached the spot and look over the investigation from A.S.-I. Safdar Ali (P.W.11). After post- mortem examination, last-worn clothes of the deceased were brought from the hospital and handed over to the Investigating Officer, who took the same in his possession vide recovery memo.
Exh.PR/1. The clothes were dispatched to the office of the. Chemical Examiner, F.S.L., Peshawar for opinion and report. The Investigating Officer also applied for securing proclamations against accused-respondent. The accused-respondent was arrested on 30-8-1997 by S.I. Syed Qasim Shah (P.W.6) when his pre-arrest bail was not confirmed. After complying with legal formalities, the Investigating Officer submitted the challan before the trial court, where prosecution produced 11 witnesses including complainant Kifayatullah (P.W.9) and Saifur Rehman (P.W.10), the eye- witnesses of occurrence, to prove the charge against the accused-respondent.
6. Dr. Ali Shah (P.W.5), Medical Officer, D.H.Q. Hospital, Charsadda on 16-6-1996 at 2-00 p.m.
Conducted autopsy on the dead body of Shah Faisal deceased (25/26), and noted the following:--
(1) Fire-arm entry wound on the medial canthus of left eye 1/4" x 1/4" in size. Charring marks present.
(2) Fire-arm exit wound corresponding to wound No,1, 2" x 2" in size with ear pina and mastoid completely destroyed. Brain matter outside with irregular margin on the right side.
(3) Fire-arm entry wound on the angle of left mandible 1/3" x 1/3" in size.
(4) Fire-arm entry exit wound on the right occipital region at the level of right ear low 1 1/2" x 1 1/2" in size, corresponding to that of No,3.
(5) Fire-arm entry wound 1/4" x 1/4" in size on the left 8th intercostals space 1" interior to mid axillary line.
(6) Fire-arm exit wound 1" x 1" in size at the level of 4th thorax vertebrae 1" from the mid line on the left side posteriorly. Corresponding to that of No,5.
(7) Fire-arm entry wound 1/4" x 1/4" in size at the mid portion of ramus of scapula on the right side.
(8) Fire-arm exit wound of No,7 size 2 1/2" x 2 1/2" in the right axilla with irregular and everted edges.
(9) Fire-arm graze wound 3" x 3" in size at the mid portion of right lateral thigh with skin and muscles out.
(10) Fire-arm entry wound on the medial side of the right foot, 1" proximal a tarso tarsometer tarsal joint of the toe 1/4" x 1/4" in size.
(11) Fire-arm exit wound between the first and second digit of the right foot.
' In opinion of the doctor, cause of death was fire arm injuries to the brain and heart and haemorrhage and shock. Time between injuries and death was instantaneous and between death and post-mortem examination, 1 to 2 hours.
7. On the same day at 3-00 p.m. Dr. Ali Shah, also conducted post-mortem examin;tion on the dead body of Hayatullah deceased (26/27), and detected the following:--
(1) Fire-arm entry wound on the right pina of ear 1/4" x 1/4" in size.
(2) Fire-arm exit wound at the left mastoid region size 2" x 2" with everted irregular margin. Brain matter lying outside the wound, corresponding to that of No, 1.
(3) Fire-arm entry wound 1/4" x 1'4" in size 2" on the right ear pina.
(4) Fire-arm exit wound of No,3 at the left angle of mandible 2-1/2" x 2-1/2" in size. Left mandible clinically fractured.
(5) Fire-arm entry wound 1/4" x 'A" in size 2" above the right elbow joint on the lateral aspect.
(6) Fire-arm exit wound of No,5 on the medial side of right arm on the same level as that of No,5.
(7) Fire-arm entrance wound 1" above the wound No,5 on lateral aspect of right arm 1/4" x 1/4" in size.
(8) Fir-arm exit wound of No,7 on the same level as that of No,7 on medial aspect of right arm size 1-1/2" x 1-1/2".
(9) Fire-arm entrance wound at the left 2nd intercostals space on the mid clavical line 1/4" x 'A" in size.
(10) Fire-arm exit wound at the level of 3rd thorasic vertebrae on the left scapular line 1/2" x 1/2" in size. Corresponding to that of No, 9.
(11) Fire-arm entrance wound at the level of 10th intercostals space on the right mid scapular line on the back of size 1/4" x 1/4".
(12) Fire-arm exit wound of No,11 in the 6th intercostals space 2" interior to the right mid clavical line 1" x 1" in size.
(13) Fire-arm entrance wound on the 8th intercostals space on the right mid axillary line 1/4" x 1/4" in size.
(14) Fire-arm exit wound of No,13 on the same level as above on the left side 2" x 2" in size.
(15) A bullet recovered from the skin of left elbow joint anteriorly.
(16) Fire-arm entrance wound 1/4" x 1/4" on the lateral side of left elbow joint.
' Death was caused due to fire-arm injuries on the skull, brain and heart, haemorrhage and shock.
Time, between injury and death was found instantaneous and between death and post-mortem, 2 to 3 hours.
8. The accused-respondent on the conclusion of prosecution evidence, was examined under section 342, Cr.P.C. He, in his statement denied the charges and pleaded innocence. He did not opt to lead any evidence in his defence or appear himself as his own witness in terms of section 340(2), Cr. P. C .
9. At the conclusion of trial, Mr. Fayazullah Khan, learned trial Judge disbelieved the prosecution version, extended benefit of doubt to accused-respondent and acquitted him of the charges holding that `prosecution case is full of contradictions, omissions and is fraught with doubt, the benefit of which must go to the accused'.
10. We have heard at length Mr. Muhammad Saeed Khan, learned Additional Advocate-General, representing the State assisted by M/s. Asadullah Khan Chamkani and Khawaja Muhammad Gara, Advocates for the complainant and Barrister Zahurul Haq for the accused-respondent and have gone through the record with their able assistance.
11. Learned Additional Advocate-General appearing on behalf of the State bitterly criticized the impugned judgment and attempted to argue that the order of acquittal recorded by the trial court is perverse, arbitrary, fanciful and militates against the principle of law and justice. He maintained that the ocular evidence furnished by complainant Kifayatullah and his cousin Saifur Rehman P.
Ws. Has remained unshattered and has corroborated the prosecution case on all material aspects and the same has been entirely ignored by the trial Court. The learned Addl.A.-G. Took us through the evidence on record specially the testimony of eye-witnesses and reiterated that the testimony of these witnesses coupled with the medical evidence, the evidence of motive, recoveries made from the spot and prolonged abscondence of the accused-respondent sufficiently established guilt of the accused-respondent and learned trial Judge had no justifiable reason to pass a finding of acquittal in favour of the accused-respondent. Learned counsel for the complainant adopted the arguments of learned Additional Advocate-General, maintaining that the impugned order of acquittal suffers from the vice of misreading and non-reading of evidence on record and has been passed in a mechanical manner without application of judicial mind. To substantiate the contentions, reliance was placed on Muhammad Ashraf and another v. The State (PLD 2004 SC 539), Khizar Hayat v. Imtiaz Ali Khan and 2 others (2004 SCM R 845), Muhammad Iqbal v The State (PLD 2001 SC 222), Noor Muhammad v. The State and another (2005 SCM R 1958), Fateh Muhammad v. Bagoo and others (PLD 1960 SC (Pak) 286) and Gul Raza v. The State and 4 others (PLD 2004 Peshawar 219).
12. Barrister Zahoorul Haq, for the accused-respondent, on the other hand, supported the impugned judgment whole heartedly and submitted that the F.I.R. In this case was not registered at the police station, complainant of this case met A.S.-I. Safdar Ali Khan (P.W.11) per chance and made statement, on the basis of which formal F.I.R. Was registered and in the circumstances possibility that F.I.R. Was registered after deliberation and consultation, could not be ruled out. He went on the say that the eye-witnesses were not present at he scene of occurrence and they were summoned subsequently and the F.I.R. Was lodged against the accused-respondent on the basis of suspicion, stemming from their enmity. He further maintained that motive set up by the prosecution has not been proved and even otherwise such motive was not sufficient for compelling the accused-respondent in any manner to commit the crime. Concluding the arguments, he submitted that the ocular account stands negated by medical evidence and site plan and reasons given in totality provide sufficient justification for acquittal of the accused- respondent and trial Judge after appraisement of evidence has drawn reasonable and sound conclusion and this Court does not interfere merely for the reason that a different conclusion from that of the Court acquitting the accused can possibly be drawn from the evidence. To augment the contentions, he placed reliance on Ghulam Qadir v. The State (PLD 1967 Peshawar 269) Hameed- ur-Rehman v. Said Rehman and 5 others (2005 PCr.LJ 53), Humayun v. The State and another (2005 PCr.LJ 337) and Rabnawaz Khan v. Jalil Khan and 2 others (2005 M LD 1927).
13. Having examined the evidence with great care with the assistance of the learned counsel for the parties, we have come to the conclusion that the impugned judgment of acquittal to the extent of Hayatullah and Shah Faisal deceased, cannot be allowed to remain intact. The mere fact that the eye-witnesses were closely related and had slight bitterness with the accused-respondent on account of dispute over women-folk i,e, engagement of Mst. Nighat Ruby, daughter of Tehseenullah with deceased Hayatullah, is not sufficient to refuse to analyze and evaluate their evidence. The rule laid down in such cases is that testimony of such witnesses, if stands corroborated by the material bearing on record, can be relied upon. It is the uncorroborated testimony of relation-cum-inimical witnesses, which is considered insufficient to warrant conviction.
14. It may be noticed that F.I.R. In this case had been lodged with reasonable promptitude, containing all the relevant details of the occurrence and name of the accused-respondent. The promptness in lodging the F.I.R. Eliminates all possibilities of the fabrication and false implication.
The promptitude in lodging of the F.I.R., per se, is not a guarantee of truthfulness of its contents. But where a first informant has no time to reflect upon the incident, has no occasion to sit with family members to mull over the occurrence in order to manufacture a false story whereby he could assign role of his choice to his enemies, his F.I.R. Narrative can be considered to be a fairly true story of the occurrence. All the P.Ws were fully cross-examined by the defence counsel. They have successfully passed the test of cross-examination. There are no material contradictions or discrepancies in their evidence. Their evidence is unanimous on all the material facts of the case, which goes to show that the witnesses are truthful and reliable. The inconsistencies referred by the learned counsel for the accused-respondent are neither material nor of any consequence and could not be made grounds for securing acquittal as the same with the passage of time are bound to creep up in the depositions of the P.Ws. Minor inconsistency in depositions of prosecution witnesses of inconsequential nature cannot reasonably be considered as good grounds in disbelieving independent and disinterested witnesses, as held in Allah Baksh. v. Ahmad Din (1971 SCM R 462). There is no serious enmity whatsoever with the accused-respondent and the witnesses nor any enmity was suggested between them. There is no motive or cause with any of the P.Ws. To falsely implicate the accused-respondent. The evidence of witnesses is confidence-inspiring and we do not see any reason to disbelieve their evidence. This contention is also devoid of force and is repelled. Mahbood Sultan and 2 others v. The State (2001 SCM R 163). The submission of the learned accused-respondent's counsel that P.W. Ajun Khan has been abandoned by the prosecution as he was not willing to support the prosecution case, has also failed to impress us. It is settled law that the prosecution is not bound to produce all the eye-witnesses, nominated in the F.I.R. It is always the quality of evidence and not the quantity of evidence which matters, as held in Allah Bakhsh v.
Shami (PLD 1980 SC 225). We fail to persuade ourselves to hold that the accused is substituted by the complainant party. Substitution of an accused who is actually involved in the commission of a crime is a rare phenomena in this country particularly in an incident in which single accused was involved by nominating him in the F.I.R. From the very beginning. So much so if the parties are inter se related to each other, therefore, due to close kinship it is very hard to accept the theory of substitution. Sirajuddin v. Kala and another (PLD 1964 SC 26) and Shaukat Javed v. The State (PLD 1993 Peshawar 109). The findings of the learned trial Judge on the issue of recoveries of empties are purely presumptuous and the same has no backing of law. It is nowhere laid in law that number of empties cannot tally exactly with the wounds inflicted. The trial Court has also failed to appreciate that the term `Aslaha Atasheen' covers all types of fire-arms including Klashnikovs and his assertion that this constituted a contradiction is totally unsustainable. The trial Court has also erred in law by holding that site plan is a substantive piece of evidence and that the site plan should lend accuracy to the prosecution version. The medical evidence is in complete harmony with the ocular account and no contradiction could be pointed out.
15. Now the next question for consideration is motive. It may be noted that the prosecution has set up the motive against the accused-respondent. The motive has been established through the evidence of complainant Kifayatullah and P.W. Saifur Rehman. The submission of the learned counsel that the motive in this case appears to be not a compelling factor for the accused- respondent to launch attack but has assumed the nature of a source for false implication of the accused-respondent, does not carry weight.
16'. Another important circumstance which has immense corroborative value is the absconsion of the accused-respondent. It may be noticed here that the incident having taken place on 6-6-1996, accused-respondent was arrested on 30-8-1997 when his pre-arrest bail was not confirmed by the Court of Session. This piece of evidence was specifically put to the accused-respondent in his statement under section 342, Cr.P.C. But he could not offer any tenable explanation whatsoever.
When the abscondence is proved on record and the explanation put forward by the accused does not appeal to reason, then this circumstance coupled with the evidence on record weighs rather heavily against the accused. If an authority is needed on the point, reference can be made to Mst.
Roheed v. Khan Bahadur. And another (1992 SCM R 1036) and Amanullah Khan and 3 others v. The State (2002 PCr.LJ 1934 Lahore).
17. We are not inclined to discuss the case-law referred to by the learned counsel for accused- respondent in detail because of distinguishable facts and circumstances of the case.
18. Adverting to the question of sentence, we find that the accused-respondent has taken lives of two innocent young person's over trivial matter. The normal wages of a crime of murder is death and we have found that in the circumstances of this case, accused-respondent deserves no less.
19. As consequence of the above discussion, we accept the State Appeal, set aside the impugned order of acquittal regarding murders of Hayatullah and Shah Faisal deceased, convict the accused-respondent on two counts and sentence him to suffer death penalty. The accused respondent shall also pay compensation amounting to Rs,2,00,000 as required under section 544- A Cr. P.0 to legal heirs of both the deceased in equal share or in default to undergo two. Years' S.I.
The accused- respondent shall be hanged by the neck till he is dead. However, as abundant caution. State Appeal regarding attempted murder of complainant Kifayatullah and Saifur Rehman P.Ws., stands dismissed.
20. At the time of announcement of order, accused-respondent did not enter appearance and slipped away from the court premises. However, learned counsel for the parties were present. The order was announced in open court in presence of the counsel for the parties. Perpetual warrant of arrest were ordered to be issued against the accused-respondent with direction that his name be entered in the register of proclaimed offenders. Bailable warrant of arrest issued against accused- respondent by this Court vide order dated 28-9-1999, is recalled.
' The above are detailed reasons of our short order dated 24-1-2006.