' SARDAR M. ASHRAF KHAN, J.--- The above titled appeals have been directed against the one and the same judgment, therefore, these are being disposed of through this single judgment.
2. The brief facts forming the background of the instant appeals are that the complainant Muhammad Ajmal, lodged a written report on 1-1-2000 at 5-10 p.m. At Police Station Kotli stating therein that he along with Muhammad Inayat, deceased were proceeding to participate in a "Niaz" ceremony. When they reached near the house of Mian Ejaz, the accused Muhammad Javed, Muhammad Naeem, Waheed, Muhammad Siddique, Maqbool Hussain and Mehmood Hussain who were waiting in a hid-out. As soon as they saw the complainant and Muhammad Inayat, the accused persons attacked upon them. Muhammad Javed, accused inflicted an injury with his knife on the chest of Muhammad Inayat, who fell down on the ground. Muhammad Naeem accused shot a fire of pistol which did not hit anybody. Maqbool Hussain, accused inflicted an injury on the head of the complainant with his stick while Muhammad Siddique accused gave a blow of stick on his left arm. On raising hue and cry, Muhammad Iqbal and Zubair also reached at the place of occurrence. In the meantime Mehmood Hussain, accused gave a blow of stick to Muhammad Iqbal whereas, Waheed, accused attacked Muhammad Zubair with a stick. Meanwhile Rab Nawaz reached on the scene of occurrence who rescued them from the accused persons. The motive behind the occurrence has been stated to be that on the day of occurrence an altercation had taken place between Javed and Iqbal at the early hours of the same day. For this reason the accused persons waylaid and launched a murderous attack upon the complainant and Muhammad Inayat. On this report a case of hurt and murderous assault was registered against the accused persons at Police Station Kotli, but later on Muhammad Inayat succumbed to the injuries therefore, section 302, A.P.C. Was added.
3. On this report a case under sections 302, 341/324, 147/148, 149, 337-A(1), A.P.C. Was registered against convict-appellant, Muhammad Javed and Muhammad Naeem accused respondents.
After registration of the case, the convict-appellant and Muhammad Naeem respondents were apprehended by the police. After completion of investigation a challan under sections 302, 324, 341, 337-A, 147/148/149, A.P.C. Was submitted against the convict-appellant and Muhammad Naeem etc. Before District Criminal Court, Kotli. The convict-appellant and Muhammad Naeem etc. (respondents) during their examination under section 242, Cr.P.C. Pleaded not guilty and claimed for the trial. The trial Court directed the prosecution to produce witnesses in support of its case. The prosecution produced fourteen witnesses in support of the case.
4. After completion of the prosecution evidence, an opportunity was provided to the convict- appellant and respondents Muhammad Naeem etc. Under section 342, Cr.P.C. To furnish their explanation about the evidence and all the circumstances appearing against them. The convict- appellant and Muhammad Naeem etc. (respondents) pleaded that they were attacked by the complainant party and a false evidence was produced against them on account of enmity and claimed to be innocent.
5. The District Criminal Court, Kotli, after completion of the trial awarded life imprisonment to Muhammad Javed, convict-appellant whereas the accused-respondents Muhammad Naeem etc. Were acquitted of the charge by giving them the benefit of the doubt vide its judgment, dated 30- 3-2006. Feeling aggrieved and dissatisfied, the convict-appellant has challenged the aforesaid conviction before this Court and complainant has also challenged the impugned judgment through appeal for awarding sentence to other acquitted co-accused and for awarding death sentence to Muhammad Javed convict-appellant. The aforesaid judgment of District Criminal Court, Kotli, dated 30-3-2006 is the subject-matter of the appeals titled above.
6. Malik Muhammad Zarriat Khan, the learned counsel for the convict-appellant, Muhammad Javed and respondents Muhammad Naeem etc. Argued that the trial Court committed grave illegality while recording the impugned judgment. According to him, the convict-appellant has been falsely implicated in the occurrence. The learned counsel further contended that the prosecution witnesses are closely related to the deceased therefore, they being interested witnesses, their evidence cannot be taken into consideration. The learned counsel contended that the weapon of offence has not been recovered on the pointation of convict-appellant and only Investigating Officer was produced as recovery witness, while P.Ws. Fazal Karim, Abdul Khaliq and Muhammad lshfaq have not been produced by the prosecution, had they been produced they would have negated the recovery proceedings therefore, the sole evidence of Investigating Officer is not reliable and cannot be believed. The learned counsel vehemently argued that Aghaz, Nawaz and Rafi were also present at the place of occurrence, but they were not made witnesses by the prosecution and the same creates doubt about the prosecution story. The learned counsel further contended that the case is full of material irregularities and serious contradictions and it is based upon surmises and conjectures and the trial Court failed to consider that the benefit of even slightest doubt goes in favour of the accused and the prosecution is bound to prove its case beyond any reasonable doubt. It has further been contended that the trial Court also failed to follow the procedure laid down in Cr.P.C. With regard to the recoveries and convicted the convict- appellant without any justification. It is further contended that the evidence produced in this context has also not been properly appreciated in its true perspective. The learned counsel zealously argued that at evening time in the way to home the complainant Ajmal tried to hit convict-appellant but instead he hit the deceased, as a result of such hitting by "Tester" he died and the convict-appellant has wrongly been involved in the instant murder case. It is contended that the prosecution has failed to prove the motive. The learned counsel finally prayed that the impugned judgment may be set aside by accepting the appeal and the convict-appellant may be acquitted of the charge levelled against him. In suppoit of his contentions the learned counsel cited the following case-laws:-- ' (1) 1980 PCr.LJ 1075, (2) 1984 PCr.LJ 743, (3) 1988 PCr.LJ 1261, (4) 1993 PCr.LJ 1739, (5) 1999 M LD 506,.
(6) 2001 SCM R 177, (7) 2001 PCr.LJ 1740, (8) 2004 PCr.LJ 482, (9) 2003 PCr.LJ 1847.
7. On the other hand, Mirza Muhammad Nisar, the learned counsel for the complainant/appellant, Muhammad Ajmal while controverting the arguments raised by the learned counsel for the convict-appellant argued that the prosecution has proved its case beyond any shadow of doubt, therefore, the sentence of convict-appellant may be enhanced into death penalty and the respondents in cross-appeal may be sentenced under law. He submitted that there is complete unison among the witnesses and there is no contradiction between them. The learned counsel further contended that the presence of the convict-appellant and co-accused at the place of occurrence is admitted one and the trial Court has wrongly acquitted the respondents, Muhammad Naeem etc. The learned coumel contended that the weapon of offence has been recovered at the pointation of convict-appellant in presence of the witnesses. The Investigating Officer has testified the recovery of the weapon of crime. However, conviction can be based relying on the eye-witnesses, despite appearance of recovery witnesses before the Court. He further argued that in the present case sufficient evidence was available to convict the appellant, therefore, the trial Court rightly convicted the appellant however, instead of awarding death sentence, the trial Court was not justified to award life imprisonment without penalizing with fine. It is submitted by the learned counsel that convict-appellant may be awarded death penalty and the acquitted accused-persons may also be punished accordingly. The learned counsel cited the following case-laws in support of his contentions:-- ' (1) 2001 YLR 1510, (2) 2003 YLR 806, (3) 2005 PCr.LJ 1247, (4) 2007 SCR 100.
8. Raja Khurshid Ahmed, the learned Assistant Advocate-General supported the arguments raised by the learned counsel for the appellant, Muhammad Ajmal.
9. I have heard the learned counsel for the parties and perused the relevant record with utmost care.
10. The prosecution has produced four eye-witnesses amongst those the complainant Muhammad Ajmal, Muhammad Iqbal and Muhammad Zubair are also injured. The complainant, Muhammad Ajmal, has deposed that he along with Muhammad Inayat were going to the house of one Lal Muhammad on 1-1-2000 to attend the ceremony of "Niaz" when they reached near the house of Mian Ejaz at 4-45 p.m., the accused Javed along with Naeem suddenly appeared at the scene of occurrence and attacked upon them. Muhammad Javed convict-appellant, who was armed with knife hit a knife blow to deceased, at lower part of the left side of the chest, consequently he fell down. Muhammad Naeem fired with pistol which remained ineffective, whereas Maqbool and Siddique inflicted stick blows to the complainant. It was further stated that on hearing hue and cry Muhammad Iqbal and Zubair also reached at the place of occurrence who also received stick blows on their heads by Mehmood and Waheed accused-respondents respectively.
11. The P.Ws. Muhammad Iqbal and Zubair stated that as soon as they reached at the spot accused Javed inflicted a stab injury to deceased and rest of the accused inflicted stick blows not only to them but also to P.W. Ajmal. P.W. Rab Nawaz is another witness of prosecution who has confirmed and corroborated the prosecution version and further added that Aghaz, Rafi and Nawaz also witnessed the occurrence. The statement of the witnesses that they reached at the place of occurrence and saw the accused inflicting injury on the body of Inayat (deceased) appears to be contradictory to that of the complainant. Because according to the complainant when these witnesses came at the place of occurrence, deceased was already stabbed by convict-appellant.
However, it cannot be said that the aforesaid inconsistency and contradiction makes the whole statement unreliable because the Court has to sift the grain from the chaff. Therefore, if a witness makes any contradiction or improvement which may adversely affect his credibility, would not by itself be sufficient to reject his testimony as a whole, rather the Court can rely upon a portion of his testimony, if it is corroborated by other reliable evidence or circumstance. The complainant has 'categorically deposed the way of occurrence took place with its full details and there appears no inconsistency or discrepancies in his statement.
12. It will not be out of place to mention here that even if it is assumed that the eye-witnesses Iqbal and Zubair witnessed the incident from a distance, and they did not actually saw the convict- appellant by inflicting the fatal injury even then P.W. Ajmal the complainant who was accompanying the deceased and was injured in the incident is sufficient to prove the case of prosecution, because conviction can be based on a solitary statement of a witness and no particular number of witnesses were required for proof of a fact, because much importance has to be given to quality and not the quantity of the evidence. This view also finds support from PLD 1980 SC 225, which is as under:-- "Single witness; conviction can be based on his evidence when Court considers the witness reliable.
Emphasis is on quality of evidence rather than quantity."
13. It is contended that complainant is 1st cousin and rest of the witnesses are closely related to the deceased as such their statements cannot be relied upon. No doubt the complainant, P.Ws. And deceased are closely related, however, such evidence if rings true and is confidence inspiring, cannot be discarded merely on the basis of such relationship unless and until the witnesses have any enmity with the accused. This view finds support from 2007 SCR 100, which is as under:-- "Mere relationship of a witness with the complainant party is no ground for discarding or disbelieving his evidence until and unless he has some enmity with the, accused persons."
14. An objection that recovery of knife has not been established because the witnesses of the same were not produced, does not require serious consideration because the Investigating Officer P. W.16 appeared and testified the recovery. No doubt three other witnesses were abandoned by the prosecution. However, the main purpose of joining the person from locality is to guard against possible concoction and for that reason witnesses from the locality are to be joined in the investigation, if it is done and for some reasons, subsequently in the trial Court those witnesses from the locality are not produced, for the reason, that they had been won-over, then evidence of Police Officer who made the recovery can be believed if its conduct in the investigation is beyond approach. This view finds support from PLD 1996 SC 17, which is as under:-- "Main object behind section 103, Cr.P.C. Is to guard against possible chicanery and concoction and for that reason witnesses from the locality are to be joined in the investigation and if this is done and for some reason subsequently in the trial Court those witnesses from the locality are not produced for the reason that they had been won-over, then evidence of Police Officer who made the recovery can be believed if his conduct in the investigation is beyond approach."
15. The learned counsel for the defence has also contended that the incident took place on the initiation of the complainant and during the scuffle, deceased, received the fatal injury by the complainant who was armed with a "Tester". The plea of defence is that P.W. Ajmal tried to hit convict-appellant, but instead he hit the deceased, as a result of such hitting he died, appears to be very improbable and not confidence inspiring, because the defence has not been able to substantiate his assertion through evidence, whereas prosecution has fully proved the IF case by producing truthful and confidence-inspiring evidence. Therefore, the argument is repelled.
16. It appears from the record that the occurrence took place at 4-45 p.m., on 1-1-2000 and the report for the same was lodged on the same day at 6-45 p.m., by Muhammad Ajmal-complainant, at Chowki Sar Sawa Police Station Kotli. Muhammad Inayat, the injured (deceased) was immediately referred to hospital, but he could not survive due to stab injury on the lower part of his left, side of the chest. During cross-examination the P.W.15 Dr. Ch. Muhammad Afzal has denied the suggestion that the injury on the person of Muhammad Inayat could be inflicted by "Khunga" (sic) or any other instrument, rather he categorically stated that such type of injury can only be inflicted by the sharp-edged weapon like knife. This shows that P.W. Doctor has clarified the seat of injury by a knife which resulted into the death of deceased.
17. It has also been contended by the learned counsel for the defence that Aghaz, Nawaz and Rafi were also present at the place of occurrence, but they were not made witnesses by the prosecution and the same creates doubt upon the prosecution story. The Investigating Officer has clarified that he did not feel advised to place the said persons as witnesses. A perusal of defence version incorporated in statement under section 342, Cr.P.C. Shows that accused-appellant had categorically admitted his presence at the place of occurrence and scuffle between the parties in presence of Aghaz, Rafi and Nawaz, but neither the matter was reported to police nor such evidence was produced in support of his plea to substantiate his version. Therefore, convict- appellant while withholding the evidence available to support his claim in defence, cannot throw mud on the face of prosecution through his sole statement.
18. The accused in the present case was arrested on 5-1-2000. He on interrogation while in police custody led to the recovery of blood-stained knife, Exh.P.O. From inside of an iron box lying in his house, which was made into a sealed parcel and taken into possession vide memo. Exh.P.2 on 12-1- 2000, concrete and blood-stained clay from the place of occurrence along with Exh.P.D. Shalwar, Qameez, Bunyan and Sweater of deceased. The seized articles were sent to the Serologist and according to his opinion vide Exh.P.T., the knife and other articles were found to be stained with human blood. The recoveries of these articles have been testified by Investigating Officer, Rab Nawaz P.W.4, Zubair P.W.3, Sardar Abdul Majeed, P.W.5 and Sardar Saleem P.W.6. Therefore, the prosecution story in addition to the above ocular evidence has also been supported by sufficient corroboratory and confirmatory evidence.
19. The above mentioned scrutiny of evidence, reveals that the version of the prosecution is very much clear, convincing and confidence inspiring and the complainant with rest of evidence stood firm to the test of cross-examination by giving their evidence in straight forward manner, therefore, it can safely be said that prosecution has proved its case in the light of above mentioned evidence and the conviction under law can be recorded on such evidence.
20. So far as the question of motive is concerned, it has been contended that due to altercation between Javed and P.W. Iqbal at early hours of the day of occurrence, the convict-appellant along with acquitted respondents launched an attack upon the complainant party which resulted into this incident. The version appears to be improbable because the altercation and exchange of dialogue whatsoever took place between Javed and P.W. Iqbal as such Iqbal should have been the target instead of deceased, therefore, the version as set up by the prosecution appears to be not only weak but also ambiguous and the motive appears to be shrouded in mystery. However, it is well-settled principle of law that, if the prosecution otherwise proves the case by credible evidence, the conviction can be based upon such evidence, even with the weak motive. This view finds support from 1996 PCr.LJ 256, wherein it has been held that:-- "Motive for mut-der shrouded in mystery and only one Chhuri blow given which proved fatal.
Sentence reduced to life imprisonment. "
21. So far as the case of acquitted accused-respondents is concerned, suffices to say that in case of vicarious liability, the common intention of all the accused must be shown to share criminal act and also that criminal act was done in concert and in pursuance to a prearranged plan, but in the present case no pre-concert and prearranged plan appears to have been proved.
22. The prosecution story as disclosed by the complainant was that he along with deceased was proceeding towards the residence of Lal for participating in "Niaz". The accused party launched an attack upon them. Consequently, Inayat deceased received a stab injury by convict-appellant whereas, the complainant received stick injury by Maqbool accused. After some time Iqbal and Zubair also came at the place of occurrence and were also injured. P.Ws. Iqbal and Zubair in their statements deposed that they also saw the convict-appellant by stabbing the deceased. The statements appear to be contrary to that of the complainant with regard to witnessing the same because according to the complainant, the P.Ws. Iqbal and Zubair came at the place of occurrence when the deceased was already stabbed by the convict-appellant and it was not possible for these witnesses to see the act of stabbing with their own eyes as such this creates a bit doubt in their statements. Thus, the trial Court has rightly given the benefit of doubt to the acquitted respondents.
23. It is settled principle of law that the Court has to sift the grain from the chaff as such only one circumstance creating doubt in mind of prudent man is sufficient to acquit the respondents as an abundant caution. Therefore, if the trial Court acquitted some of the accused persons by giving them the benefit of doubt, that does not impair the veracity of the witnesses to the other accused whose involvement in the case is established. This view finds support from 1993 SCM R 544, wherein it has been held that:-- "Criminal Courts can sift the grain from the chaff and acquit some of the accused as a matter of abundant caution by giving them the benefit of doubt without, in any way, impairing the veracity of the witnesses qua the other accused whose involvement in the occurrence is free from doubt and the part attributed to them is established from direct as well as circumstantial evidence."
24. The case-law cited by the learned counsel for the convict-appellant has no appropriate relevancy with the facts of the present case, therefore, needs not to be discussed.
25. So far as the objection that the trial Court has committed grave illegality by not awarding normal penalty of death to the convict-appellant, Muhammad Javed is concerned, suffices to say that in view of absence of motive and also keeping in view the teenage of the convict-appellant the sentence of life imprisonment is sufficient to meet the ends of justice. However, Muhammad Javed (convict-appellant) is also awarded the sentence of fine Rs,20,000 under section 544-A, Cr.P.C. Which shall be paid to the legal heirs of the deceased. In case of nonpayment of fine he shall further undergo simple imprisonment for a period of one month.
26. In the light of what has been stated above, the judgment passed by the trial Court is upheld by dismissing the appeal filed by appellant Javed and cross-appeal filed by complainant Muhammad Ajmal is partly accepted to the extent of fine only. With the above modification the appeal stands disposed of accordingly.