' ZUBDA-TUL-HUSSAIN, J. -This judgment will dispose of Criminal Appeal No,280 of 2003 filed by Riaz Ahmed, appellant. He was convicted and sentenced to death by the learned Additional Sessions Judge, Haroonabad vide judgment dated 8-9-2003. He was also directed to pay Rs,35000 as compensation to the legal heirs of deceased Muhammad Saqib under section 544-A, Cr.P.C.
2. Murder Reference No,49 of 2003 for confirmation or otherwise of the death sentence of the convict, Riaz Ahmed, shall also be replied through this single judgment.
3. At the instance of one Rana Nasrullah case F.I.R. No, 115/2002, dated 3-3-2002, was registered under sections 324/109/148/149, P.P.C. At Police Station, Faqirwali, District Bahawalnagar. The injured victim, namely, Muhammad Saqib, subsequently succumbed to the injuries whereupon it was converted into case under section, 302, P.P.C.
4. According to the complainant, on 30-3-2002, at about 8-00 p.m. He along with his son Muhammad Saqib was going on a motorcycle to Lorry Adda, Faqirwali in order to purchase some grocery. As they reached near a vegetable shop, the accused Riaz Ahmed, armed with repeate? .12 bore, Ehsan alias Bagga, holding pistol .30 bore, Ehsan-ul-Haq Khokhar, armed with pistol .30 bore, Muhammad Ali, equipped with rifle .222, Zia-ul-Haq with pistol .30 bore, Latif Sheikh Khoja with pistol .30 bore came there on a car with an intent to assault upon his son Muhammad Saqib. Seeing them Muhammad Saqib hurriedly got off the motorcycle and he as well as the complainant tried to get aside but Zia-ul- Haq, accused raised a 'lalkara' against Muhammad Saqib, whereupon Riaz, appellant opened fire on Muhammad Saqib, hitting at his buttocks and abdomen. The other accused persons also simultaneously opened fire and caused injuries on the person of Muhammad Saqib. Three persons, namely, Muhammad Latif, Amin and Mazhar Iqbal who were present around also received injuries because of the indiscriminate firing of the accused persons.
According to the complainant, the occurrence was also' witnessed by Bashir Ahmed and Shaukat Ali . The accused allegedly decamped immediately after the occurrence. It was also alleged in the complainant that one Muhammad Bakhsh alias Bakhshi was responsible for causing the abetment of the offence as he had been watching and monitoring the arrival of the deceased Muhammad Saqib.
5. The motive as stated in the F.I.R. Was that in the year 1994 the victim Muhammad Saqib and the appellant, Riaz Qureshi, had a dispute while they were students of Degree College, Haroonabad.
This dispute resulted in firing causing the death of one Salim Akhtar and giving injuries to the appellant, Riaz. Muhammad Saqib was an accused in the murder case registered in that behalf and about 5/6 months prior to the present incident he was acquitted on the basis of compromise but the appellant, Riaz had grievance and grudge against Muhammad Saqib for which he wanted to take the revenge and it was because of the same that he along with the aforesaid co-accused attempted on the life of Muhammad Saqib which ultimately resulted in his death.
6. From amongst the star witnesses the prosecution produced Muhammad Nasrullah, complainant, as P.W.2, while Bashir Ahmed appeared as P.W.3. The complainant as P.W.2 of course reiterated the version given by him in the complaint F.I.R. Exh.P.B. Similarly the statement of Bashir Ahmed is in line with the version of the occurrence given by the complainant, Muhammad Nasrullah. The complainant had, however, given minute details of the firing attributed to the accused persons individually whereas according to Bashir Ahmed, the appellant Riaz Ahmed fired shot at Muhammad Saqib and then all the accused persons also started firing P.W.3, Bashir Ahmed had allegedly joined the investigation and in that process witnessed the recovery of blood-stained earth from the place of occurrence, the recovery of empty cartridges of 12 bore P-1/1-5,3 empties of .222 rifle P.2/1-3 and 6 empties of .30 bore pistol P.3/1-6. The motorcycle abandoned by Muhammad Saqib at the time of occurrence was also taken into possession by the police in the presence of Bashir Ahmed; P.W.3.
7. The medical evidence consists of the statement of Dr. Muhammad Ramzan, Medical Officer, Rural Health Centre, Faqirwali who examined the deceased Rana Muhammad Saqib as well as the injured P.WSi Muhammad Latif, Mazhar Iqbal and Muhammad Amin. After the death of Muhammad Saqib he also conducted postmortem on his dead body and formulated the postmortem report Exh.P.M. Along with a diagram showing the locations of the injuries. In the opinion, the death of Muhammad Saqib was caused by serious shock and haemorrhage due to injuries No,l to 5 which were result of firearm weapons. In view of the relevancy of the injuries as the cause of death as well as the events mentioned in the complaint and reiterated in the evidence, it seems appropriate to reproduce the details of the injuries as the same would be helpful for arriving at a just conclusion.
The injuries were as under:--
(1) A lacerated wound 12 x 10 c.m. On the outer and posterior aspect of right tibia. 10 c.m. Above of ankle margins blackened, muscles ruptured, fibula bone was fractured into pieces. Tibia bone normal.
(2) 4th finger of right hand was cut with a lacerated wound 4 x 2 c.m. On the 1st phalanx at centre.
Bone was cut, muscles ruptured, margins blackened attached only by a tag of skin on medial side while a lacerated wound 2 x 1 c.m. On the outer aspect of middle phalanx of middle finger of right hand, muscles ruptured. Bonepxposed.
(3) 9 circular penetrating wounds with invested blackened margins 1 c.m. In diameter each,' 1 above gluteal region, 1 at the center of thigh on post aspect profuse bleeding was present from wounds.
(4) A penetrating circular inverted lacerated wound 1 c.m. In diameter blackened margins on the post aspect of left hip.
(5) A penetrating lacerated circular inverted blackened wound 1 c.m..* dia on left side of abdomen, 7 c.m. Below the umbilicus and 3 1/2 c.m. From the central abdominal line. Profuse bleeding was present.
(6) An abrasion 5 x 2 c.m. On medical aspect of left thigh. 7 C.m above the knee joint.
(7) A lacerated wound 1 xl c.m. On post aspect of right thigh 7 c.m. Below the gluteal region. Skin deep.
8, The statement of Muhammad Saqib shortly before his death was recorded by the Investigating Officer in the presence of the said Medical Officer who had testified to the police that the victim was fit to make a statement, As afterwards Muhammad Saqib expired, this statement was included in the prosecution evidence as his dying declaration. Except for the Investigating Officer of the case, namely, Muhammad Abdullah, S.L, P.W.6 rest of the evidence consists of statements of police officials etc. Who are formal type of witnesses while private P.W.8, Muhammad Arshad was also witness of various recoveries of the weapons of offence and live bullets. Muhammad Akram, P.W.9 is Sub- Engineer, Faqirwali Municipality who had prepared a scaled site-plan Exh.P.B and Exh.P.B.l.
9. In his statement under section 342, Cr.P.C. The accused appellant pleaded his innocence, denied the truthfulness of the prosecution evidence and also explained the reasons for his involvement in the case. He relied upon the statement of his co-accused Ehsan alias Bagga who had besides recording his statement under section 342, Cr.P.C. Appeared as his own witness. His statement was recorded as D.W.l wherein he stated that he along with the appellant, Riaz Ahmed was going to Haroonabad and as they reached at the Bus Stand, Faqirwali all of a sudden Rana Saqib deceased along with Aslam Nagra, Izhar Gujjar. And Muhammad Asif intercepted and dragged the appellant out of the car grappled with the appellant, Riaz Ahmed while the companions of Rana "Saqib started firing. According to the D.W. He also fired shorts in his defence with the licenced .12 bore repeater by taking shelter behind vegetable shop of Qadir but as a result of cross-firing Rana Saqib, Muhammad Amin, Latif and Mazhar Iqbal were injured at the spot while Rana Saqib later expired in the hospital.
10. The case as pleaded by the said Ehsan alias Bagga was that P.Ws.2 and 3, namely Muhammad Nasrullah and Bashir Ahmed were not present at he scene of occurrence as their residence was situated at a considerable distance.
11. The learned counsel for the appellant mainly argued on the following points: description of the occurrence as given in the complaint and the statements of the P.Ws.;
(i) the occurrence even by the prosecution version was not premeditated and had taken place at the spur of the moment when the parties suddenly confronted each other at the Bus Stand;
(ii) not only the occurrence is a chance event but the presence of P.Ws. i.e,, the complainant, Nasrullah, P.W.l and Bashir Ahmed, P.W.2 is also not plausible and possible;
(iii) even if the prosecution version is taken into account the presence of the P.W.2 and P.W.3 at the spot was only a chance visit;
(iv) the statements of the alleged eyewitnesses are contradictory and discrepant on material points and giver rise to various questions culminating into doubt about the liability of the accused;
(v) the attribution of the injuries to various accused is also not in consonance with the ocular of the as well as medical evidence. The dying declaration of the deceased which though not relied upon by the learned trial Court also runs counter to the description of the occurrence as given in the complaint and the statement of the Pw.s.;
(vi) the recoveries are doubtful and, therefore, cannot be taken as a corroboration of the case. The injured P.Ws. Who could produce the best type of evidence in this case were given up by the prosecution which fact alone speaks a lot about the infirmity of the prosecution case;
(vii) there was sufficient evidence and the circumstances also speak of it that the accused had acted in self- defence; and,
(vi) in any case it was not a case of capital punishment because the occurrence was not pre- meditated and the fires were generally attributed to all the accused because of which it was difficult to determine as to which injury and made by whom was the cause of death of Muhammad Saqib.
12. It is true that according to the prosecution version the complainant, Muhammad Nasrullah along with his son Muhammad Saqib deceased had left his house for purchasing household articles for which there was no pre-planning and it could be difficult for the accused persons to have the information of the departure of the complainant and the deceased towards Faqirwali Bus Stop. The occurrence, thus, may be the result of incidence taking place the spur of the moment but it does not at all render P.W.2 and P.W.3 as chance witnesses. The reason is more than obvious. The complainant being father of the deceased would genuinely be accompanying his son who was to drive the motorcycle for his convenience. In any case the company of the complainant and the deceased would not be unnatural. The position of P.W.2 Bashir Ahmed is rather affirmative because he was running a shop at the Highway Road Faqirwali. His presence at Lorry Adda, Faqirwali was neither unusual nor occasional. They were thus natural witnesses of the occurrence.
13. A chance witness is the one who should not normally be there where the occurrence takes place. When the presence of a witness at the spot is reasonably explained by the .Circumstances or the narration of occurrence given by him inspire confidence he would not be a chance witness.
As already stated Muhammad Nasrullah, complainant, the father of the deceased was a natural companion of the deceased at the time of occurrence. Bashir Ahmed, P.W.2 not only had shop on the main road but was also named in the F.I.R. And he is also an absolutely independent witness.
The depositions of both these P.Ws. Are supportive of each other as both of them have reasonably explained their presence at the spot and have narrated the occurrence in the manner which duly inspires confidence. Their testimony can be considered and relied upon safely in view of the dictum laid down in Iqbal v. State 1998 MLD 1732.
14. The discrepancies pointed out by the learned counsel for the appellant are essentially of minor nature. The presence of the public, the details of the events regarding the attribution to the accused persons, the negligible difference of time and distances etc. Do not shatter the basis of the prosecution case. The ocular account of the case is trustworthy, coherent and consistent and the minor discrepancies relied upon on behalf of the appellant which cropped up in the prosecution evidence do not injur intrinsic value of the evidence. When the incriminating evidence of the witness has not been shaken by such discrepancies appearing in the cross- examination, the statements of the P.Ws. Cannot be discarded. Reference in this behalf may be had to Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758) and Mandoods Khan v. The State (2003 SCM R 884).
15. The medical evidence insofar as it relates to the cause of death of the deceased also lends support to the ocular account of the prosecution case. Five out of seven injuries found on the person of the deceased were caused by fire-arm shots whereas the two were stated to be the result of use of blunt weapons. The duration of the injuries in relation to the time of infliction, the time of death and the time of postmortem is also coherent with the details of the occurrence based upon the complainant and the oral testimony of the P.Ws.
16. The evidence of recoveries from the deceased insofar as the nature of injuries pnd the medical evidence is concerned, is not discrepant in the circumstances of the prosecution version. It is of course true that the details of the attribution of the injuries to various accused persons is not totally in conformity with those as given in the complaint/F.I.R. And the complainant did make little improvement in his statement in that behalf but this aspect by itself was not destructive for the prosecution case and whatever the effect it can have is likely to be dilated upon later in this judgment.
17. It is also true that the injured P.Ws. Were given up by the learned prosecutor during the trial of the case but even excluding their evidence the coherent and consistent statements of eye- witnesses P.W.2 and P.W.3 coupled with the relevant circumstances sufficiently establish the case of the prosecution against the appellant, Riaz Ahmed. The mere fact that the injured P.Ws. Were given up by the prosecution by itself would not mean that the prosecution evidence was devoid of the requisite quality of reliance. Even otherwise it is not incumbent upon the prosecution to produce all the cited witnesses in support of his case. It is the quality of the evidence and not the quantity of the witnesses which is required to establish the prosecution case. It has repeatedly been held by the superior Courts that the emphasis has to be on the quality of evidence and not on its quantity. Even in murder cases like the present one, the conviction can be based on the testimony of a single witness if the Court is satisfied that he is reliable whereas in the present case the testimony of two dependable witnesses is on record. Regarding the principle of quality of evidence vis-a-vis its quantity we are fortified by the principle laid down in Allah Bakhsh v. Shammi and others (PLD 19870 SC 225) and Amrood Khan v. The State (2002 SCM R 1568).
18. The accused-appellant had raised the plea of self-defence against the charge levelled against him and his co-accused, j This plea, we must say, is not in line with the circumstances nor is borne out from the facts on record. According to the statement Of accused Ehsan alias Bagga which has also been relied upon by the appellant is his statement under section 342, Cr.P.C. He and the appellant had taken shelter behind a shop. It was nowhere the case of the accused persons that the deceased and his father had also taken shelter anywhere. It transpired from the defence evidence and can safely be drawn from the circumstances of the case that the deceased and his father both were exposed to the accused party being in an open place and in spite of their effort to be aside could not find or reach a safe place. Resultantly the deceased received severe injuries. At the same time it is also evident that none of the accused persons was injured in this case. Had they been duly exposed to the target of the deceased it would have been difficult for them to escape any injury especially when the accused persons by their own showing were facing firing from the deceased and his alleged companions. We are, therefore, not inclined to accept the version of the appellant that the deceased was hit by the shots fired by Ehsan alias Bagga in his self- defence.
19. It need not be emphasized that when a specific plea is taken by an accused the onus lies upon him to prove the same. It was so held in Elahi Bakhsh and others v. The State and others (2005 SCM R 810) and Mst. Dur Naz and another v. Yousuf and another (2005 SCM R 1906). The accused appellant in this case specifically raised a plea of exercise of right of self-defence but filed to discharge the burden of proof lying upon them. The inference would thus be drawn against the appellant.
20. The learned counsel for the appellant referred to the acquittal of the coaccused of the appellant on the basis of same evidence of the prosecution. He also pointed out that the appeal against the acquittal of the co-accused has also been dismissed. The learned counsel thus argued that the conviction of the appellant could not be based on the same evidence which was not relied upon and accepted by the learned trial Court against his co-accused.
It is true that the co-accused of the appellant were acquitted of the charge in this case but it cannot be a reason for the acquittal of the appellant as well because their acquittal by itself does not belie the whole of the prosecution evidence if the M Court while sifting the grain from chaff comes to the conclusion that the available evidence truly and successfully has established the case against one or more of the various accused. The real culprit only needs to be punished for the guilt and the accused from innocent can be acquitted of the charge because the aforesaid principle of sifting the truth is duly recognized in the criminal jurisprudence as well as for the dispensation of justice. It is the common tendency in our society to widen the net for implicating the enhanced number of accused. In such cases and especially when the parties either withhold the truth from the Court or transgressed the truth, the Court can lawfully discover the truth and sift the grain from the chaff as held in Shahid Raza and another v. The State and another (1992 SCM R 1647).
21. On the basis of what has been discussed above, we are of the firm opinion that the prosecution has successfully established its case against the accused.
22. We are, however, of the view that the appellant deserves sentence short of capital punishment for reasons more than one. As already concluded the occurrence was not pre-meditated or pre- planned. The deceased and his father had gone to the market for the purchase of some household articles. The programme was not predecided or at least there is no evidence to show that it was a pre-arranged or a scheduled programme which was in the knowledge of the accused persons. It was just a chance and co-incidence that the parties came across each other at the place of occurrence. Both the parties are at one in this behalf. The defence pleas also is for a sudden arrival of the parties at the spot. The motive alleged by the complainant by itself does not show that the accused had pre-arranged their assault. When both the parties suddenly came across each other the alleged motive was not behind their programme of arrival at the place of occurrence. The circumstances of the case also show that the accused appellant had no specific pre-meditated intention. It may also be relevant to point out that even by prosecution own showing the earlier involvement of the deceased in a murder in which the appellant was also injured had been settled by a compromise and a period of 5/6 months had also elapsed after the compromise when the present occurrence took place. The facts and the circumstances of the case as well as the line of prosecution case vividly indicate that the occurrence was an event which occurred at the spur of the moment.
23. Even otherwise the narration of the events as given by the P.Ws. And the deceased in his last statement (dying declaration) is such that it is difficult to exactly assess as to which injury was caused by whom. In the complaint the injuries were attributed to the appellant, Riaz Ahmed and at the same time firing was attributed to his co-accused. The complainant as P.W.2 then made an improvement and stated that the co-accused of the appellant also fired shots on the deceased.
The victim in his aforesaid last statement recorded in the hospital involved almbs'twall " the' accused in the attribution 0f injuries to them. P.W.3, Bashir Ahmed also stated that the appellant opened fire and then all the accused persons started firing. Thus firstly, the pre-meditation of the assault is not established and then it is also in the evidence that all the accused opened fire. It is also in the medical evidence that the death was caused by serious shock and haemorrhage resulting from Injuries Nos.l to 5. The liability of the ^appellant for the murder cannot be denied but at the same time it is difficult to determine if it was only because of the injury |given by him that the victim expired. The said shock and haemorrhage was the result of more than one injuries which as stated in the evidence were not caused by the appellant alone. Thus, in our considered opinion it is not a case of capital punishment. Accordingly, while maintaining the conviction of the appellant, the sentence of the appellant is converted into life imprisonment instead the normal penalty of death.
13. The sentence of death is not confirmed and the Murder Reference is replied in the Negative.
Sentence reduced.