Attaullah Khan, J.--Learned Additional Sessions Judge-I, Lakki Marwat tried Darwaish Khan (accused/appellant) under Section 302 PPC and convicted him under the section & sentenced to imprisonment for life and with fine of Rs, 1,00,000/- (one lac) in terms of Section 544-A Cr.P.C. to be paid to legal heirs of deceased and in default thereof six months S.I.
2. Feeling aggrieved, the accused/appellant has filed Criminal Appeal Bearing No, 59/2008 against his conviction.
3. Arguments of learned counsel for the accused/appellant and. DAG assisted by learned counsel for complainant heard and record perused, in the light of which our discussion is as under.
4. Brief facts of the case are that on 20.04.2000, complainant made a report to the effect that on the same day at about 1900 hours, he alongwith his brother Nasib Gul were busy in putting down wheat grains from roof of Kotha in their residential house. In the meanwhile accused (present appellant) and Shah Ayaz, their co-villagers, who were sitting in the front of their house, duly armed with kalashnikovs and were playing the tape recorder with loud voice, whom were asked by his brother Nasib Gul not to play the tape recorder so much loudly, at which the accused got annoyed and opened firing with their kalashnikovs at his brother namely Nasib Gul, with which he was hit and got injured. Thereafter he took down his injured brother from the upper roof of Kotha while accused decamped from the spot. His brother while taking him to the police station for report, succumbed to the, injuries in the way. Motive behind the occurrence was stated to be annoyance of the accused over plying of tape recorder.
5. After completion of investigation, challan was submitted before the trial Court. Charge against the accused/appellant framed to which he pleaded not guilty and claimed trial. The prosecution has examined eight witnesses while the statement of accused/appellant under Section 342 Cr.P.C. recorded wherein he did not opt to produce defence evidence, or to be examined under Section 340(2) Cr.P.C.
6. After hearing arguments of the counsel for the parties, the impugned conviction was recorded.
7. Learned. counsel for the accused/appellant submitted that the report lodged with a delay of three hours and fifteen minutes which is not explained and hence there is doubt about the involvement of the accused. His next argument is that the motive is too weak to prompt a person to, commit a heinous office like murder. He further argued that the FSL report is defective as it has not disclosed the number of weapons. According to learned counsel there is no mention of roof of bath room in the FIR while subsequently it was mentioned in the statement of an eye-witness which is indicative of improvement.
8. On the other hand, the stand of complainant counsel is that after the occurrence, the deceased was in injured condition, therefore, he was to be transported to the hospital or police station and the area being hardened, has taken time in lodging the report. According to him the injury of the deceased, the distance and the location of area justify, the delay in lodging FIR. He further argued that the FSL report Ex:DA/1 suggest two different 7.62 MM bore weapons which is also disclosed by eye-witness in his statement. According to learned counsel, the accused remained absconder for about seven years.
9. We would first discuss the alleged delay in the FIR. The FIR is lodged on the basis of murasila Ex:PA. It reveals that the occurrence took place at 19.00 hours while report was lodged at 22.15 hours, thus there is a delay of three hours and 15 minutes. The I.0 who recorded the report, appeared as PW-7 in his cross-examination. He has stated that the place of occurrence is situated on a metal road but some portion of the road has been flown away by the water. According to him he would have reached to the place of occurrence within one hour. He has further stated that area is hardened and beyond the control of local police. It means that the person having his own vehicle can cover the area in -one hour but the case of the complainant is different. He was having no vehicle of his own. He had also to look after deceased then injured. He had to arrange the vehicle for transporting the dead body to the hospital and this must have taken the time. So in our opinion the time consumed is properly explained. Every delay in lodging of FIR is not fatal to the prosecution case. It depends on the circumstances of each case. In some cases the delay 9/10 hours in lodging of FIR, if properly explained has been believed. Reference may be given to 1996 SCM R 1962. In another case the delay of 8 hours in lodging of FIR has been held not fatal to the prosecution case.
Reliance may be placed on PLD 1992 Supreme Court 211, So in the given case the delay stands explained and is not destructive.
10. Coming to the motive the stand of learned counsel for the defence is that it is not proved and, therefore, conviction cannot be recorded. The eye-witnesses have stated in their testimony that the motive over plying tape recorder by, the accused on high speed which was objected to by deceased which annoyed them and committed the offence. Even if motive is not proved, conviction can be recorded on capital charge provided that the case is proved by prosecution. We may refer to 2004 P.Cr,L.J 1984 wherein it is held that: "Even otherwise, proof of motive was not essential for establishing guilt of an accused person. Even without the proof of motive, conviction can be recorded on a capital charge, provided case was proved by prosecution."
11. By now it is settled principle of law that the motive less cases would not go unpunished. In cases where there is ocular evidence-, the motive becomes of no vital importance. Reference may be given to NLR 2001 Criminal 149. Generally the sufficiency or otherwise of motive is not sine qua non for commission of offence. In this case there is reliable ocular testimony which is sufficient to prove the guilt of the accused and motive need not be proved.
12. The objection of the learned counsel for the accused that the FSL report is defective because the number of weapons has not been given. We have perused the FSL report which is available on file as Ex:PD/1. It is provided in the report that empties were fired from two different 7.62 MM bore rifles.
In our opinion this is sufficient and fully corroborates the ocular evidence.
13. One of the objection of learned counsel is that articles were sent to Chemical Examiner with sufficient delay which has made the report doubtful itself. We do not agree with this argument because the examiner opinion cannot be treated as fatal in the absence of objection regarding the same having been tempered, with or manipulated. Reference may be given to PLD 2001 Supreme Court 107. The relevant observation of the apex Court is reproduced as below:-- "As per settled law the delay in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in absence of objection e of tempering or manipulating the articles as held in the case of Muhammad Iqbal v. Muhammad Tahir and others (PLD 1985 SC 361).
Relevant Para, therefrom is reproduced hereunder: It may also be pointed out that no suggestion was made in the present case that the knife in question has been tampered with at any stage, either when it was in the custody of the police or that of the Chemical Examiner Nor was the Investigating Officer or any other relevant witness cross-examined as to the reason for the delay in its reaching the office of the Chemical Examiner.
Therefore, in view of the observations of this Court in Sikdandar and 2 others v. The State PLD 1981 SC 477 the recovery could have been used as corroborating the ocular testimony. Relevant portion of the judgment may be reproduced below: As in the case of Noor Alam, the evidence in the present case is that the articles found sustained with blood were secured under a property Mashirama and properly sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross-examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence."
14. From the above observation it is clear that the FSL report clearly indicates the use of two different weapons. Moreover, the delay in sending to FSL is also not damaging to the prosecution case.
15. The next argument of learned counsel of the appellant is regarding the absence of mention of bath room in the FIR. Again, in our opinion it is i,e, fatal to the prosecution case because otherwise the place of occurrence i.e roof of room has been mentioned in the FIR as well as in the statement of eye-witnesses. The absence of mentioned roof of bath room in the FIR would not matter in the case in hand.
16. The case of prosecution rest upon ocular evidence, medical, FSL report, empties and evidence of abscondence of the accused for about 7 years. The ocular evidence in this case is consisted of one witness who is complainant in this case. He appeared as PW-8. He is also the , lodger of FIR. Though he is the brother of the deceased but nothing has been brought out from him to establish any mala fide on his part or to show that he is interested in the conviction of the accused. The ocular testimony furnished by the complainant was not impeached even in lengthy cross examination by accused and the same was also corroborated by medical evidence as well as recovery of empties coupled with laboratory report. Though in the case the ocular evidence is consisting of a sole witness, but even then it would not effect the prosecution case because the law did not fix any particular number of witness for establishing the guilt of the accused. Quality of evidence is required and not quantity of witness. If prosecution feels satisfied that it could be proved by a single witness then it is not necessary to produce any more evidence. We may refer to 2004 P.Cr.L.J 1984 wherein it is held that: The argument that Sain Muhammad was not produced as a witness also cannot be of any help to the appellant because. the law does not fix any particular number of witnesses for establishing the guilt of an accused. It is the quality of evidence which matters and not the quantity of witnesses. If the prosecution feels satisfied that its case can be proved by producing a single witness then there is no compulsion for it to produce all the witnesses that are mentioned in the FIR."
17. In case where a witness otherwise trust worthy, independent, having no motive against accused, his testimony is to be believed even if he has close relation with the deceased because relation is no ground to discard his evidence. In some cases superior Courts have gone to the extent that they believed even interested witness in case their testimony is free from doubt and support by independent corroboration. The. main test of an eye-witness to be believed is as his conduct which must be free from animus and ill will. Reliance may be placed on NLR 1998 Criminal 82 and NLR 2008 Criminal 183.
17. In this case the medical evidence also corroborates the ocular version. The FSL report supports the prosecution case. The accused remained absconder for about 7 years though abscandance of accused was a weak 'evidence by itself could not be made basis on conviction. However, it can be taken into consideration if otherwise their guilt is proved particularly keeping in view the unimpeachable evidence.
18. The result of our above discussion is that the defence has failed to point out any reasonable ground for interference in the impugned conviction, therefore, the present criminal appeal is dismissed being without force.