' IJAZ AHMAD CHAUDHRY, J.-Amanat Ali appellant was convicted for an offence under section 302(b), P.P.C. On two counts, vide judgment dated 18-9-2001 rendered by the learned Additional Sessions Judge, Pakpattan and was sentenced to death on two Counts for committing 'Qatl-iAmd' of Mst. Hameeda Bibi and Muhammad Hussain deceased with direction to pay a sum of Rs,50,000 on two counts to the heirs of the above said deceased by way of compensation under section 544- A, Cr.P.C. Or in default of payment thereof to further undergo S.I. For six months on each count.
Through the same judgment, co-accused namely Nazar Muhammad and Salamat Ali were acquitted of the charges by the learned trial Court -while extending benefit of doubt to them.
Amanat Ali appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No,710 of 2001 which has been heard by us along With Murder Reference No,750 of 2001 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of the sentences of death passed by the learned trial Court against Amanat Ali appellant. We propose to decide both these matters together through the present consolidated judgment.
2. Succinctly the facts of the prosecution case set up in the F.I.R. (Exh.PA/1) got lodged by Mst.
Mukhtar Bibi complainant (P.W.1) are that her mother Mst. Hameeda Bibi (deceased) had agricultural land in Chak No,50/EB and a 'Dera' had been constructed there for the cattle.
Muhammad Hussain- (deceased) maternal uncle of the complainant had not got his marriage set. He also used to live in the said 'Dera' along with them. Mst. Mukhtar Bibi complainant (P.W.1) had no , brother and that is why her mother used to reside in a rented house at Arifwala City. They had 7/8 buffaloes and earned their livelihood by selling the milk of the said buffaloes. They had two servants namely . Muhammad Ali (P.W.2) and Muhammad Iqbal (given up P.W.) to safeguard the cattle. Mst. Mukhtar Bibi complainant (P.W.1) and her deceased mother used to sell the milk daily to Milk Pack company. On the day of occurrence, they had been waiting for milk van. Mst. Mukhtar Bibi complainant (P.W.1) and her mother used to come back to Arifwala daily after selling milk. On the day of occurrence, at about 'Eshawaila', the complainant along with her maternal uncle Muhammad Hussain (deceased), mother Mst. Hameeda Bibi (deceased) and the above-said two servants was present in the Dera. All of a sudden, Amanat Ali appellant armed with .12 bore double barrel gun, Salamat Ali (acquitted accused) armed with .12 bore gun and Nazar Muhammad (acquitted accused) armed with sota, came there. Nazar Muhammad (acquitted accused) raised a Lalkara to his sons to teach a lesson to Mst.Hameeda Bibi and Muhammad Hussain (deceased) for pursuing the case and making the 'watt'. It was also alleged that a lantern was also alit there.
Amanat Ali appellant fired two shots with his .12 bore double barrel gun at Muhammad Hussain (deceased) hitting on his head and arm who became seriously injured. The complainant and her mother tried to save their lives after hiding themselves in the cattle shed, but Amanat Ali appellant after entering in the cattle shed also made two fire shots at the mother of the complainant hitting her on the head, ear, and left arm who also became seriously injured. Salamat Ali (acquitted accused) made fire in the air. The accused persons then fled away from the spot while firing in the air. The complainant and the above said P.Ws. Attended her mother and paternal uncle, but they succumbed to the injuries at the spot. Besides the complainant the occurrence was witnessed by Muhammad Ali (P.W.2) and Muhammad Iqbal (not produced).
3. The motive behind the occurrence was alleged to be that four years prior to the occurrence, Amanat Ali appellant had committed- zina-bil-jabr with Mst. Kausar, sister of the complainant and a case in this regard was pending in the Court. On 19-10-2000, Revenue Authorities had made demarcation of the land of the parties. Due to the said grudge, the accused in furtherance of their common intention had committed the murders of both the deceased.
4. The investigation of this case was conducted by Muhammad Aman, S.-I. (P.W.14) and during the investigation, the dead bodies of both the deceased were inspected, injury statements and inquest reports were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earths were secured, thur empties of gun .12 bore were collected from the spot; rough site-plan of the place of occurrence was prepared, the dead bodies of both the deceased were sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, the appellant and the co-accused were arrested on 22-11-2000, on 4-12-2000. Amanat Ali appellant while in police custody led to the recovery of, .12 bore double barrel gun (P.6) lying in an iron box of his residential house and after completion of the investigation a challan was submitted in the Cotirt.
5. At the commencement of the trial the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and the co-accused framed a charge under section 302/34, P.P.C. Against them on 30-3-2001, to which they pleaded not guilty and claimed for a trial.
6. During the trial the prosecution produced as many as fourteen Witnesses in support of its case.
The ocular account of the incident in question was furnished by Mst. Mukhtar Bibi complainant (P.
W.1) and Muhammad Ali (P.W.2) who also deposed about the motive while P.W.2 Muhammad Ali had also identified the dead bodies of Muhammad Hussain and Mst. Hameeda Bibi deceased at the time of autopsy. Ghtrlam Murtaza, Constable. (P.W.3) had escorted the dead bodies of both the deceased to mortuary for autopsy. The medical evidence was provided by Dr. Rahmat Ali (P.W.7) and Dr. Shamim Aslam (P.W.8), who on 3-11-2000 had conducted the post-mortem examinations on the dead bodies of both the deceased.
' Muhammad Aman, S.-I. (P.W.14) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C., the appellant and the co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "Why this case against you and why the P.Ws. Have deposed against you?" Amanat. Ali appellant replied as under:-- ' "I have been falsely involved in this case due to suspicion, although the complainant party has numerous enemies and I have been falsely got challaned by the police being in league with complainant party and the remaining persons have been let off after getting payment from them or due to brotheri pressure. It was an unseen occurrence."
' In reply to the above-said question, Salamat Ali and Nazar Muhammad (acquitted accused) made the similar reply with slight difference. The appellant and his co-accused, however, opted not to make statements on oath under section 340(2), Cr.P.C. But the appellant produced certain documents in his defence.
8. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above. Hence,. The present appeal and the connected Murder Reference before this Court.
9. The learned counsel for the appellant contends that it was dark night occurrence and the complainant in her statement before the learned trial Court had not stated about the source of light in which they had seen the incident; that likewise source of light had not been mentioned neither in the rough site-plan nor in the site-plan prepared by the draftsman; that complainant (P.W.1) was not present at the spot and her statement is in contradiction with the medical evidence as no blackening or burning was observed by the doctor on the injuries of both the deceased; that on the other hand, the complainant claimed that her mother and her maternal uncle were fired at from 2/3 feet only and barrel of the gun was put on Mst. Hameeda Bibi (deceased) when she was fired at; that Salamat co-accused was also attributed firing at Muhammad Hussain deceased while Nazar co-accused was alleged to have caused sota blow to Muhammad Hussain deceased, but they have been acquitted by the learned trial Court and the same treatment should be given to the appellant as well; that P.W.2 Muhammad Ali had been declared hostile and his statement cannot be considered; that the recovery of double barrel gun from the possession of the appellant in the present case was legally inconsequential as the recovery had been effected on 2-12-2000 while the empties were sent to the office of Forensic Science Laboratory after six days of effecting of recovery on 8-12-2000 and report of the Forensic Science Laboratory cannot be considered; that there were contradictions in the statements of the eyewitnesses and the prosecution had not been able to prove the case against the appellant. Beyond any shadow of doubt; that acquittal of the co-accused of the appellant by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellant as well; and, thus, the same eye- witnesses could not be believed by the learned trial Court against the appellant in the absence of.
Ally independent corroboration; that the motive was also not proved and that the prosecution had failed to prove the case against the appellant beyond any shadow of doubt.
10. On the contrary, the learned counsel for the complainant and the State have maintained in unison that the Mst. Mukhtar Bibi complainant (P.W.1) along with her mother Mst. Hameeda Bibi (deceased) used to go to the Dera i.e, place' of incident daily and they also used to go to daily to the place of their residence at Arifwala Town after handing over the milk to the milk van as they were doing business of selling of milk from the buffaloes; that the incident had taken place in the Dera and identity of the accused was not difficult as they were residing at the adjacent Dera for the last decades; that the appellant was also involved in the commission of zina with the younger sister of the complainant, which case was still pending in the Court and as such they were known to each other; that if the police officials had not mentioned the presence of lantern in the site-plan or in any other document it will not be sufficient to declare that there was no source of light at the place where the incident had taken place; that at the time the complainant, her mother and her maternal uncle along with the other P.Ws. While present at the place of incident were making preparation for Milking the buffaloes and to give the same to the milk van, which could not be done in the darkness or without any light; that there were no chances of false implication of the appellant in the present Case by letting off the real culprit if the appellant had not participated in the occurrence as the complainant had no grudge, ill-will or enmity to falsely involve the appellant; that the statement of the complainant to the extent of involvement of the appellant is consistent; that the medical evidence fully supported the ocular account as both the deceased had received injuries with gun which was in possession of the appellant; that the recovery of weapon had been effected from the appellant; that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed.
11. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
12. The occurrence in the present case according to the complainant ' had taken place at 'Eshawaila' on 2-11-2000, at the Dera of Mst. Hameeda Bibi (deceased), situate in Chak No,50/EB, 12 miles away towards North-West from Police Station Sadar Arifwala District Pakpattan and the matter was reported by Mst. Mukhtar Bibi complainant (P.W.l) while making her statement (Exh.PA) to Muhammad Aman, S.-I. (P.W.14) at the place of occurrence, the same might at 9-00 p.m. On the basis of which formal F.I.R. (Exh.PA/1) was subsequently drafted by Ghulam Akhtar HC (P.W.6) at the police station the same night at 9-45 p.m. Under sections 302/34, P.P.C., and as such the F.I.R. Was got lodged with promptitude without any inordinate delay in which name of the appellant as a single accused with specific role had been mentioned that he while armed with .12 bore double barrel gun had made two fire shots at Muhammad Hussain deceased and also made firing on Mst.
Hameeda Bibiv (deceased) mother of the complainant repeatedly. The acquitted co- accused were not attributed any effective role. It has been established on the record that registration of the F.I.R, was without any inordinate delay and it eliminated the possibility of fabricating false story for the involvement of the appellant as a single accused with the main role. Otherwise, there were number of injuries on the bodies of the two deceased, which could very easily be attributed to the other accused.
13. To prove the ocular account the prosecution had examined Mst. Miikhtar Bibi complainant (P.W.l) and Muhammad Ali (P.W.2). P.W.l was admittedly daughter of Mst. Hameeda Bibi (deceased) as well as niece of Muhammad Hussain (deceased) and as such she was related with both the deceased closely. However, close relationship of her with the deceased alone is not sufficient to discard her statement and also to declare her as an interested witness. Admittedly four years prior to the registration of the present case, a case under sections 10/11 Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 had been registered against the appellant for committing zina with the sister of the complainant, which was pending till the registration of the instant case. The appellant was residing at the adjacent Dera to the complainant and there was previous ill-will' and enmity between the parties. Even then statement of the complainant cannot be brushed aside as during the cross- examination it has been brought on the record by the defence that the deceased had enmity of criminal as well as civil litigation with other persons as well, but in spite of that in the F.I.R. All the injuries had been attributed to the appellant. Had the complainant any intention to falsely implicate the enemies in the present case by widening a net, she could have easily implicated number of her enemies in the present case by dividing number of injuries upon them. Even otherwise due to registration of case against the appellant, he could be inimical towards the complainant party, but it did not provide any reason to the complainant to falsely implicate the appellant as the main accused in this case as the said Hadood case was still sub judice before the Court of law. The main argument of the learned counsel for the appellant is that the complainant (P.W.l) at the most was the chance witness, who was not present at the spot and it was an unwitnessed occurrence, but the complainant had falsely implicated the appellant in the present case due to suspicion. It is in the evidence that Mst. Mukhtar Bibi complainant (P.\y.l) and her mother used to sell the m)tk to earn livelihood and the cattle had fteen kept at the Dera/place of incident where Muhammad Hussain (deceased) used to reside permanently. During the cross- examination, Mst. Mukhtar Bibi complainant (P.W.l) stated that she and her mother used to go back to their place of residence at Arifwala Town after selling milk to the milk van which used to collect the same from their Dera/place of incident. In such circumstances, it is clear that the complainant and her mother and other sister were residing Arifwala Town but they used to go to the place of incident daily and come back from there after selling the milk to the milk van. It is also admitted fact that milk van used to visit the Dera to collect the milk after 8-30 p.m.'It was so stated by P.W.2 Muhammad Ali, who used to milk the buffaloes. Hence, we are not in agreement with the learned counsel for the appellant that the complainant was not present at the spot and it was an unwitnessed incident committed during odd hours of night and there was no source of light, even if the same has not been disclosed by P.W.l in her examination-in- chief. It was the driver of milk van who had informed the police about the incident according to the Investigating Officer (P.W.14). As the milk van arrived after the incident, it shows that the incident must have taken place before 8- 30 p.m.It is also admitted fact that milking was in progress from the buffaloes and it was to be collected and to be handed over to the milk van when the complainant was also present at the Dera along with deceased and her two servants. We cannot, believe that they were sitting in the darkness without even any lanterns when they yet had to collect the milk and hand over the same to the milk van. So there must be some light for completion of the work which was being done by the complainant and both the deceased along with their servants. If the Investigating Officer had not shown the source of light in the site-plan, in the peculiar circumstances of this case it cannot be said that there was all around darkness at the Dera. Even otherwise, there was no question of misidentity of the appellant as earlier allegation had been levelled against the appellant for commission of zina with the younger sister of the complainant and a criminal case was also pending in the Court against him. Moreover, the appellant was p next door neighbourer to the complainant for the last so many years, who were cultivating their lands in the same vicinity and as such they were known to each other. Hence, there was no question of misidentity of the appellant in the present case if the appellant had not participated in the occurrence.
14. We have also found that statement under section 154, Cr.P.C. Of Mst. Mukhtar Bibi complainant (P.W.l) had been recorded immediately after the incident and she had attributed -all the injuries to the appellant. She was certain about the participation of the appellant while armed with .12 bore double-barrel gun. It has been contended on behalf of the appellant that the complainant had made improvement in her statement at the trial by attributing two fire-arm injuries to Salamat Ali (acquitted accused). She was duly confronted with her previous statement on this point as in the F.I.R. She had attributed all the injuries to the appellant. Salamat Ali and Nazar Muhammad have already been acquitted by the learned trial Court after finding their case not free from doubt.
However, their acquittal will not make the case of the appellant that of acquittal being distinguishable from the case of the coaccused who had not been attributed any injury to the deceased in the statement under section 154, Cr.P.C. Before the police, but Mst. Mukhtar Bibi complainant while appearing as (P.W.l) had levelled such allegation - against them. As such benefit of doubt had rightly been extended to both of them by the learned trial Court. On the other hand, the appellant had been attributed the consistent role of firing at both the deceased in her statement before the police and at the trial by Mst. Mukhtar Bibi complainant (P.W.l).
15. Muhammad Ali (P.W.l) was the other eye-witness, who cannot be relied upon as he had been declared hostile by the prosecution. He was a false witness and we are not ready to extract the portions of his statement to rely upon for the conviction. The statement of P.W.2 is out of consideration as the false witness cannot be encouraged by the Courts.
16. The prosecution is now left with the evidence of P.W.l only. We have already accepted her presence at the spot. There is nothing on the record to discard the statement of the complainant and to declare her as an interested witness. She had faced the test of cross-examination successfully and the defence failed to gain anything out of it for false implication of the appellant by letting off the real culprit. P.W.l remained consistent regarding the time, place and the manner in which the occurrence had taken place with the previous statement made before the police. It is settled law that in criminal cases, the quality and not the quantity of evidence is to be seen but the conviction can be based on solitary statement of the witness, if the same is found to be trustworthy. Although there are some contradictions and improvements in the statement of P.W.l, but the same are not sufficient to exonerate the appellant from the commission of this occurrence as a single accused. The said contradictions can be termed as lapses of g time and even otherwise the complainant was a simpleton Villager and also a lady. After perusal of statement of P.W.l, we find the same trustworthy to the extent of the appellant and it can be relied upon-even without any corroboration through any independent piece of evidence.
17. There is another aspect of the present case that the appellant had remained fugitive from justice for about twenty days as the occurrence had taken place on 2-11-2000, but the appellant was arrested in the present case on 22-11-2000. Admittedly, the appellant was resident of the same locality and his Dera was adjacent to the Dera of the complainant. In such circumstances, it camiot be believed that the appellant was ignorant about his involvement in the present case as the main accused and his abscondailce can be termed as intentional to avoid legal consequences of the case registered against him. The abscondance of the appellant gave sufficient corroboration to the ocular account regarding his involvement in the present occurrence. Though no proceedings were initiated against him under sections 87 and 88 of the Cr.P.C. Yet a specific question was put to the appellant by the learned trial Court in his statement under section 342, Cr.P.C. That he along with the co-accused had remained fugitive from justice till 22-11-200. The appellant failed to give any satisfactory reply and only claimed that during the investigation the two co-accused had been declared innocent having not been found present at the spot. The learned counsel for the State has cited Haroon Rasheed and 6 others v. The State and another (PLJ 2006 SC 137), wherein the august Supreme Court of Pakistan by relying upon Chakkar and another v. The State (1971 PCr.LJ 1121 at 1124-A), had considered the absconsion of 8 days as corroborative piece of evidence against the accused-appellant. The relevant portion is reproduced as under:-- ' "Accused absconding immediately after the occurrence, police making search but , accused found not available in village and arrested 8 days afterwards, such absconding . Of accused, held, a strong piece of corroborative evidence."
' In Beekho alias Imran Bus and two others v. The State (1973 PCr.LJ (DB) 896 at 900-B), the learned Division Bench of * the High Court observed as under:- ' " Accused remaining absconding for four days after occurrence- Abscondence -not explained' satisfactorily-Conduct of.Accused, held, weighs in favour of guilt in circumstances."
In the present case, the abscondence -of the appellant was for 20 days, which can be termed as intentional to avoid the consequences of registration of case against him and used as a corroborative piece of evidence to the ocular account.
18. The motive setup by the prosecution against the appellant in the present is proved as he was involved in a case of commission of zina with Mst. Kausar Bibi younger sister of the complainant and a criminal case in this regard had been registered in the year 1996 i.e, four years before the present incident and the same was still pending in the Court. The appellant had not refuted the motive, but it was only suggested to P.W.l that both the'deceased had other enemies as well. The defence failed to bring on record that why the other enemies were let off and the appellant was nominated as a single accused of making repeated fires at both the deceased, who received number of injuries, which could easily be attributed to other enemies as well, if the complainant had any reason to. Concoct the false story. The statement of the complainant is found sufficient to prove the motive, which further corroborated the ocular account regarding involvement of the appellant in the present occurrence.
19. The medical evidence has fully supported the ocular account as the deceased had received fire-arm injuries which were sufficient to cause death in the ordinary course of nature. Although the complainant alleged that the appellant had fired at both the deceased from the close range, but no blackening or burning was found on the injuries. This alone is not sufficient to declare the medical evidence in contradiction with the ocular account as the appellant is the single accused alleged to have made firing at both the deceased at two different places. It cannot be expected that the complainant would have watched each and every movement of the appellant' and the victims during the occurrence when repeated fires had been made by the appellant. Even otherwise, the complainant could have improved her version at the trial regarding the distance of firing by the appellant at both the deceased, if she was a tutored witness.
20. As far as recovery of weapon is concerned, we find that the appellant was arrested on 22-11 -2000 and recovery of gun .12 bore double-barrel (P.6) had been effected from him on 4-12-2000.
According to the prosecution four empties had been collected from the spot on 2-11-2000 but the said empties had been sent to the office of Forensic Science Laboratory on 8-12-2000 instead of sending the same immediately after collecting the same from the spot. We find that there was no mala tide on the part of the police to create such evidence against the appellant and the complainant was also a poor lady and was not in a position to pressurize the police to make up such evidence. Although due care and caution in sending the empties at the earliest to the office of Forensic Science Laboratory was not observed, but in the peculiar facts and circumstances of the case it can be ignored. According to the report of Forensic Science Laboratory (Exh.PV) the empties recovered from the spot had been fired from the weapon allegedly recovered from the appellant. So recovery of the gun from the appellant gives corroboration to the solitary statement of the complainant.
21. For the foregoing reasons, we have no hesitation in holding that the prosecution had been able to bring home guilt to the appellant beyond any shadow of doubt. Resultantly, the conviction recorded by the, learned trial Court under section 302(b), P.P.C. On two counts is maintained.
22. So far as quantum of sentence is concerned, we do not find any mitigating circumstances in .This case warranting lesser sentence. The appellant had come at the spot while armed with double-barrel .12 bore gun and made repeated fires resulting into causing of 11 injuries on the person of Muhammad Hussain deceased and four injuries on the person of Mst. Hameeda" Bibi deceased, which were declared by Dr. Rahmat Ali (P.W.7) and Dr. Shamim Aslam (P.W.8), respectively sufficient to cause death in the ordinary course of nature. The probable time between the injuries and the death was immediate. The intention of the assailant can be gathered from the nature of the weapon used in the occurrence, seat of the injuries and the damage caused by it. As such the death sentence on two. Counts awarded to the appellant by the Teamed trial Court along with direction for payment of compensation amounting to Rs,50,000 on two counts to the legal heirs of the above-said two deceased under section 544-A, Cr.P.C. Is also maintained. This appeal stands dismissed accordingly.
23. Consequently, the death sentence awarded to Amanat Ali, convict-appellant, is confirmed and Murder Reference No, 750 of 2001 is replied in the affirmative.