Muhammad Safdar Khan Sikandri, J.--Dissatisfied from the impugned judgment dated 25.01.2007 passed by learned Additional Sessions Judge-I, Lakki Marwat, whereby convict-appellants Matiullah son of Habibullah and Rehmanullah son of Ajab Khan were convicted under Section 302(b) PPC and sentenced to life imprisonment with fine of Rs, 50,000/- in case FIR No, 301 dated 14.9.2003 registered under Sections 302/34 PPC in Police Station Tajori, District Lakki Marwat, they have come up to this Court with Criminal Appeal No, 18/2007 against their conviction while the complainant party has filed Criminal revision under Section 439 Cr.P.0 for enhancement of the sentence awarded to the accused-respondents above named.
2. As both these appeal and criminal revision referred to above are the offshoot of one and the same impugned judgment dated 25.01.2007 delivered in case FIR No, 301 dated 13.9.2003, therefore, we propose to dispose of both these appeal and criminal revision through this single judgment.
3. Concise facts forming the background of the prosecution case are to the effect that Naimatullah lodged the report in Police Post Gambeela wherein he alleged that on the eventful day, he alongwith his brothers namely Hayatullah, Khushdil and Akhtar Munir were going from new house to old house situated in Kot Kashmir at 1830 hours. His brother Akhtar Munir felt the need to answer the call of nature and sat in the fields of Ahmad Jan for easing himself whereas they stood waiting for his arrival. When Akhtar Munir stood up after easing himself, they saw Habibullah, Matiullah and Rehmanullah who got up from the date palm tree and started going towards Akhtar Munir and when approached near him, then Habibullah ordered to shoot Akhtar Munir and accordingly Matiullah and Rehmanullah opened fires at Akhtar Munir with their Arms with which he got hit and fell clown on the ground. The accused made their escape good from the scene of occurrence. The complainant and his brothers, when attended the deceased and he was breathing his last.
4. The prosecution succeeded to examine in all nine witnesses. After closure of the prosecution case, the accused were also afforded the opportunity to be examined under Section 342 Cr.P.C, however, they did not opt to give statements on Oath or to examine defence witnesses.
5. After hearing the arguments of counsel for the parties, the learned Additional Sessions Judge-I, Lakki Marwat convicted accused Matiullah and Rehmanullah for life imprisonment as well as fine of Rs, 50,000/- each under Section 302/34 PPC whereas accused Habibullah was acquitted and hence the above referred appeal against conviction under Section 410 Cr.P.0 and Criminal Revision under Section 439 Cr.P.0 for enhancement of the sentence awarded against accused-respondents Matiullah and Rehmanullah referred to above.
6. Learned counsel for the convict-appellants contended that the P.Ws are related and highly interested, therefore, cannot be relied upon unless corroborated, their statements are full of contradictions, their presence is doubtful on the spot, motive set out by the prosecution not proved, similarly, the site plan and recovery of emptier are doubtful. Medical evidence does not support the prosecution version and the delay in lodging the FIR has created chances of fabrication and deliberation.
7. On the other hand, the learned Deputy Advocate General and learned counsel. for the complainant refuted the above arguments and submitted that eye-witnesses are natural, their statements are trustworthy and find corroboration from medical evidence and recovery of empties. They further contended that the delay in lodging FIR is satisfactorily explained which has eliminated the chances of false implication or deliberation. The prosecution, according to them, has proved guilt of the convict-appellants, therefore, they were rightly convicted.
8. We gave our anxious thought to the above arguments and submissions addressed at the bar by the counsel for the parties and the materials available on record were also assessed meticulously.
9. Apparently, Naimaullah has reported the matter to the local police about the death of his brother Akhtar Munir at the hands of convict-appellants and has also narrated the same episode in the Court on Oath as PW-7. Similarly, Khushdil has also put forth the ocular account about the occurrence and both of them were lengthily cross examined by the defence counsel but their credibility has not been shattered. P.Ws are the brothers of the deceased and they have claimed their presence on the spot to have seen the occurrence with their own eyes, therefore, in view of 2006 SCMR 1551 where the acquitted of accused by the trial Court for the reason that the PW was the brother of complainant but converted into conviction of the accused by the High Court duly upheld by apex Court, therefore, the ocular account put forth by PWs 7 and 8 is worth believable.
Their presence on the spot is natural. The close, relation would not adversely effect the prosecution evidence because their testimony has been fully and sufficiently corroborated by other circumstantial evidence including medical version and site plan. Related and inimical witnesses may be believed and cannot be discarded on this ground alone. Reliance is placed on 1994 SCM R 1 and PLD 2001 Peshawar 112. It is in the evidence that the deceased and the P.Ws were going to their old house but the occurrence took place on the way at digar time, therefore, the accused being co-villagers of the P.Ws, the question of mistaken identity does not arise. The P.Ws are truthful witnesses and their deposition is confidence inspiring for the reason that effective role has been ascribed to the two convict-appellants and spared accused Habibullah being not falsely implicating him for firing except the role of Lalkara and prosecution succeeded to bring home guilt of two, convict-appellants who have impugned their conviction in this Court. Had the P.Ws intended false implication, they would have also involved acquitted accused Habibullah by attributing him material role but this course is not adopted which reflects the honest conduct of the eye-witnesses and rules out false implication.
10. The P.Ws have alleged the motive behind the occurrence over the dispute of landed property and criminal cases. In view of 2005 SCM R 1568 motive alone would not come in the way of prosecution if there is otherwise strong, confidence inspiring, unimpeachable and reliable evidence in support of prosecution case.
11. It is an admitted fact on the record that site plan was prepared at the pointation of eye- witnesses which clearly denotes that the deceased was done to death at Point No, 1 in the fields of Ahmad Jan and blood was secured from this point which also strengthens the eye account of the P.Ws, however, otherwise too, the site plan is not a substantive piece of evidence but it would only give an idea to the trial Court to reach a correct conclusion.
12.Even otherwise, no discrepancies have been pointed out by the accused in the site plan. As evident from the statement of PW-9, 22 empties of 7.62 bore were recovered from the places of convict-appellants at point-B and these were sent to FSL for testing and the result whereof was received in positive and were opined to be fired from different 7.62 mm bore weapons in view of striker pin marks, breach face mark and magazine marks. It is worthy to mention here that the P.Ws have attributed the role of firing to two convict-appellants, therefore, the FSL result commensurate with P.Ws and it is a supportive circumstance in favour of prosecution. Moreover, the recovery of big number of empties from the spot would also commensurate with the number of injuries on the person of deceased as well as the role of firing by two persons with two rifles.
13.Multiple injuries were sustained by the deceased and stamps of each injury is different from different angles which caused the death of Akhtar Munir, therefore, this aspect of the case clearly envisages that the occurrence has taken place in the manner as described by the P.Ws and there is no scope of falsity or exaggeration for false implication of the convict-appellants by the P.Ws.
14.The point of delay of two, hours in lodging the report remained controversial between the counsel for the parties but it is to be noted with great concern that the delay per se is not fatal for prosecution in this case for the reason that the I.0 (PW-9) has carried out free, fair and honest investigation in this case as evident from the materials on record. Moreover, it has sufficiently been explained that there were no sufficient means of transportation of shifting the deceased to Police Post and naturally in such like hectic situation, the delay of two hours is nothing to discard the whole case when otherwise it is established on the basis of ocular evidence supported by other circumstantial evidence enumerated above. If authority is needed, reliance can be placed on Haqnawaz Vs. The State (2008 P.Cr.L.J 486) where it is held that delay in lodging FIR in the absence of previous enmity would not matter much. In some cases the delay of 9/10 hours has also been not considered fatal to the prosecution if properly explained. Reference may be given to 1996 SCM R 1926. The reason for delay has been explained and this aspect of the case is not fatal for prosecution to smash the case from very roots, because when the brothers of the deceased were already present on the spot, the there would be no need for them to consult others for false implication of convict-appellants.
15. In view of the above mentioned observations, We have come to the conclusion that the prosecution is able to bring home guilt of the convict-appellants on the basis of eye-witnesses. The minor contradictions and omissions in the prosecution case, if any, will not shatter the credibility of ocular account duly corroborated by circumstantial evidence. The convict-appellants have correctly been held responsible for the qatl-e-amd of Akhtar Munir deceased and the sentence and conviction awarded by the trial Court to them is justifiable and does not call for interference and hence, their appeal deserves dismissal and is accordingly dismissed.
16.On the contrary, complainant Naimatullah, through his privately engaged counsel, has filed a separate revision petition for enhancement of sentence awarded to the accused-respondents through impugned judgment dated 25.01.2007 referred to above. Counsel for complainant- petitioner contended that in the event of proof of qatl-e-amd, the normal penalty to be awarded to the accused is death unless some cogent reason for lesser punishment is given. Further urged that in presence of motive, the unshaken eye-witnesses account duly corroborated by medical evidence, recovery of blood and empties from spot, the accused-respondents namely Matiullah and Rehmanullah deserve death penalty and urged for the enhancement of order and judgment of trial Court to be enhanced up to death with compensation to legal heirs of the deceased according to law.
17.No doubt that in case of proof of qatl-e-amd against accused, the normal penalty is death sentence but in this case, the complainant has neither mentioned nor proved any previous blood feud or enmity of murder from either side to compel the accused respondents for taking the revenge of any murder from their side and the murder of Akhtar Munir could be the result of sudden provocation at the spur of moment when Habibullah prompted the accused-respondents to kill the deceased, therefore, being not pre-meditated murder at the hands of accused- respondents will be considered a mitigating circumstance in favour of accused-respondents, therefore, the revision petition being without any substance is hereby dismissed.