' ATTAULLAH KHAN, J.---Through this single judgment we propose to decide Criminal Appeal No,134 of 2004 filed by appellants Yasir son of Khurshid Ali, Ashraf Ali Khan son of Ahmad Khan and Abid Ali son of Ashraf Ali Khan against their conviction passed by learned Sessions Judge, Bannu dated 29- 11-2004 vide which they have been convicted under section 302(b), P.P.C. On three counts and sentenced each one of them to rigorous imprisonment for life imprisonment for times. The sentences were ordered to rune consecutively with a fine of Rs,2,00,000 each and in default of payment of fine they were further ordered to undergo one year simple imprisonment. The, appellants were also convicted under section 324, P.P.C. And sentenced to undergo rigorous imprisonment for 10 years each and fine Rs,10,000 and in default of payment of fine they each further undergo simple imprisonment for six months. The appellants have also been convicted under section 148, P.P.C. For 2 years rigorous imprisonment. The fine if recovered was ordered to be paid to the legal heirs of the deceased. However, benefit of section 382-b, Cr.P.C. Was extended to the appellants.
2. Complainant Raqiaz Khan son of Mir Azad Khan and Mir Payo Khan have filed Criminal Revision No,2 of 2005 for enhancing the sentence of accused/appellants from life imprisonment to normal penalty of death and also for increasing the compensation amount. The above criminal appeal and revision are arising out of the same judgment/order passed by the learned trial Court, therefore are taken together for decision, through this single judgment.
3. Brief facts according to the F.I.R. Are that on 11-10-2001, complainant Raqiaz Khan in accompanied of Murad Khan reported the occurrence to the local police of Police Station, City to the effect that they own jewellery shops in Bagh Gali, Bannu City. On day of occurrence, they came to their place of business as a matter of routine and while Israeel his son Shakeel Khan and Murad Khan son of Sheikh Ameer sat in the shop of Israeel Khan, the shop of Naqiaz Khan was occupied by him (Raqiaz Khan complainant), Naqiaz Khan himself and Javed Khan. At 11-00 hours the accused facing trial along with Naseeruddin, Ihsan soli of Silani and Zaheer son of Farzand Ali duly armed with Kalashnikovs and .30 bore pistols arrived there and immediately started firing with their respective firearms as a result of which Ismaeel Khan, Shakeel, Javed and Naqiaz Khan were seriously injured. Hameedullah and Waseedullah shopkeepers having their shops close to crime scene also received injuries while he (complainant) and Murad Khan escaped the attack unhurt.
The injured were shifted to the Civil Hospital, Bannu where Israeel Khan, Javed Khan and Shakeel succumbed to their injuries. Hence F.I.R. No,440 dated 11-10-2001 registered under sections 302/324/148/149, P.P.C. At Police Station, City District Bannu.
4. Challan against the appellants was filed before the learned trial Court and the learned trial Court took cognizance of the case. Appellants refused to plead guilty in response to the charge framed against them; therefore prosecution was directed to record its evidence to prove guilt of the accused.
5. The prosecution examined eleven witnesses during trial against the accused and then closed its evidence. Where after statements of accused were recorded under section 342, Cr.P.C.
Accused/appellants denied to have committed any offence, however, did not produce evidence in their defence and also declined to be examined on Oath under section 340 (2), Cr.P.C.
6. The learned trial Court after hearing arguments of both sides convicted the accused/appellants and sentenced them as per detail given in first Para of this judgment.
7. Learned counsel for the accused/appellants argued that the case of prosecution is based on ocular evidence consisted of two witnesses, which are related to the deceased and inimical towards the accused/ appellants and needed corroboration, which is lacking in this case. His second submission is that three P.Ws. Namely Raqiaz, Waseedullah and Hamidullah, who were eye- witnesses, have been abandoned and a presumption arises that had they been produced they would have deposed against the prosecution. His 3rd submission is that the ocular evidence is full of contradiction and cannot be considered. His 4th submission is that the F.I.R. Is lodged with the delay of one hour for which no plausible explanation is available and, therefore, this time is spent by complainant party in consultation, deliberation and false implication. It is also submitted that one co-accused namely Nasruddin son of Farzand Ali has been acquitted by Sessions Court vide judgment dated 18-9-2009, therefore, the present accused/appellants are also entitled for the same relief as the evidence and other materials are the same.
8. On the other hand learned State Counsel assisted by learned counsel for complainant, strongly rebutted the arguments advanced by learned counsel for the accused/appellants. They argued that it is daylight occurrence, the F.I.R. Is lodged with reasonable promptitude and a number of empties were recovered. They further submitted that the ocular evidence including one injured witness has deposed against the accused/appellants, medical evidence supported the ocular evidence in respect of locale of injuries and kind of firearm. They lastly argued that the accused/appellants remained absconder for sufficient period with no good reason coupled with proof of motive as also reflected from the statement of accused/appellants recorded under section 342, Cr.P.C.
9. We have considered the arguments from both sides, in the light of evidence of prosecution and plea of defence with care and caution, which lead us to the following conclusion.
10. Keeping in view the arguments of learned counsel of the parties, the following points are before this Court for determination:-
(a) Ocular evidence.
(b) Abandoning of three witnesses and its effect.
(c) Lodging of F.I.R. i.e, whether it is registered promptly or with delay and lastly
(d) What would be the effect of acquittal Of co-accused.
11. Ocular evidence: The prosecution has produced Naqiaz Khan as P.W.6 and Murad Khan as P.W.7.
Both are admittedly related to the deceased. It appears from the F.I.R. No,440 dated 11-10-2001 that Raqiaz Khan is complainant while Murad Khan is eye-witness of the occurrence. Besides these two witnesses Naqiaz Khan, Hameedullah and Waseedullah got injured. These three persons who were injured in the incident have not been produced by the prosecution and abandoned. This would be discussed later on. So we are left with two eye-witness P.W.6 and P.W.7. Their evidence recorded by the trial Court reveals that they have given their statement in line with the F.I.R. And both of them corroborated the contents thereof. The eye version of these two witnesses suggests that it is straightforward and trustworthy because neither enmity pointed out nor proved. Both of them have charged all the accused with firing from their weapons i.e, .30 bore pistol and Kalashnikov.
12. We have gone through lengthy cross-examination of both these two witnesses but have come across nothing which may be termed as contradictions neither found any material discrepancy.
The blood feud enmity between the parties is proved by statements of these two witnesses supported by statement of accused recorded under section 342, Cr.P.C. There is nothing in cross- examination to prove or suggest that the accused were falsely implicated. On this issue even eye- witnesses have not been cross examined. The version of these two eye-witnesses is in line with the medical evidence and confirming each other. Dr. Muhammad Nazeer, M.O., DHQ Hospital, Bannu has been examined as P.W.1 and his chief-examination is reproduced below:-- "I had conducted autopsy on the dead body of Shakeel son of Israeel aged about 13 to 15 years, identified by Zahoor son of Gulap resident of Shahbaz Azmat Khel and Taj Wali son of Shaukatul on 11-10-2001 at 12-30 p.m. And found the following:-- ' Wounds.
(1) FA Injury entry wound size 1" x 1" on lower part of back on right side.
(2) FA exit wound size 2" x 2" below umbilicus.
(3) Two FA entry wounds of 1/2" x 1/2" on back left knee side by side.
(4) Two FA exit wounds on anterior aspect of left thigh size 3" x 2" and 2"x 2".
' Thorax. Healthy.
' Abdomen. Wall injured. Small intestine and large intestine injured.
' Remarks. In my opinion the deceased died of FA injuries due to severe bleeding from left popliteal vessels and vessels in the abdomen leading to shock and death.
' Probable time. Time between injuries and death: one to two hours. Between death and PM 1/2 hour to one hour.
' I see my PM report Exh. PM which is in my hand and duly signed me. Injury sheet Exh.P.M./1 and inquest report Exh. PM/2 also bear my signatures and endorsements. The said documents were handed over to police along with Kamiz and Shalwar."
' "I had conducted autopsy on the dead body of Javed son of Mir Azad aged about 15/16 years, identified by Zahoor and Taj, on 11-10-2001 at 1-30 p.m. And found the following:-- ' Wounds.
(1) FA entry wound size 1 1/2" x 1" on aspect of right axilla.
(2) FA exit wound size 2" x 2" on upper part of front of right chest.
(3) Graze wound of 1/2" x 1/2" on left temporal part of skull.
' Thorax. Except skin of left temporal region of skull rest of parts were healthy.
' Thorax. Injured on right side.
' Plurae. Right plurea injured. Right lung injured. Blood vessels injured on right side.
' Remarks. In my opinion the deceased died of FA injury leading to severe bleeding from axillary vessels and injury to right lung and associated blood vessels.
' Probable time. Time between injuries and death:--one to two hours. Between death and P.M.: 1-1/2 hour to 2-1/2 hours."
' I see my PM report Exh.PM/9 which is in my hand and bears my signature correctly Injury. Sheet Exh.PM/10 and inquest report Exh. PM/11 also bear my signatures and endorsements correctly. The P.M. Documents were handed over to police along with Kamiz of the deceased."
' "I had conducted autopsy on the dead body of Israeel son of Pain Khan resident of Kotka Khan Sherin aged about 30 to 35 years on 11-10-20W at 2-15 P.M. Identified by Zahoor and found the following:- ' Condition of subject: Stout Wounds.
(1) FA injury entry wound size 1" x 1" on front of scalp.
(2) FA injury exit wound size 2" x 2" on back scalp.
(3) Graze wound of 2" x 1" on back of left forearm.
(4) Graze wound of 2"x 1" in right hy pochondrium. Thorax. Healthy. Cranium and Spinal cord. Walls injured, rest healthy.
' Remarks. In my opinion the deceased died of FA injuries on skull leading to laceration and contusion of brain with severe bleeding from brain leading to shock and death.
' Probable time. Time between injuries and death:---one to two hours. Between death and PM two to three hours.
' I see the PM report Exh.PM/12 which is in my hand and duly signed by me. Injury sheet and inquest report Exh.PM/13 and Exh.PM/14 respectively, also bears my signatures and endorsements correctly. The above P.M documents and Kamis were handed over to police."
13. The medical report shows that all the three deceased had firearm injuries on their bodies. The recovery of bullets effected by the I.O. Through recovery memo. Exh.PR shows that two empties of Kalaslnikov .7.62 bore and two empties of .30 bore pistol, were recovered from point A shown in the site plan and from point B one empty of Kalashnikov .7.62 bore and three empties of .30 bore pistol have been recovered. These two places are those where the accused shown standing in the site plan. This recovery also supports the medical evidence.
14. In the F.I.R. The weapons attributed to the accused are Kalashnikov and .30 bore pistol, which is proved by recovery of the empties from the same place. Similarly, the medical evidence also supports that the injuries were caused by these weapons. In this way ocular version is supported by medical evidence regarding the use of weapon and the nature of the injuries. No contradiction has been pointed on behalf of the accused/appellants. The location of injuries as pointed out by defence counsel is not that much important because being human they were statute and at the time of firing a human being, changes his sides to secure his life. This would not affect the prosecution case nor create any contradiction in the medical evidence which is otherwise in consonance with ocular version.
15. As far as the relation of eye-witnesses is concerned it is by now settled principle that relationship of P.W. With the victim alone is not a ground for disbelieving his statement unless is proved. No or enmity on the part of eye-witnesses has been proved enabling him to falsely implicate the accused in the case. In this case the prosecution has two eye-witnesses who deposed against the accused. In cases where there is solitary witness and his testimony is found trustworthy, credible and confidence-inspiring he was believed and conviction awarded. Reference is given to 2007 SCM R 518, which is to the effect that relationship is not sufficient to discard the statement of interested witness. It says:- "Both the Courts below after proper appreciation of evidence had given finding of fact that the aforesaid piece of evidence duly corroborated the confession made by the petitioner and his co- accused. It is also a settled law that mere relationship is not sufficient to discard the statement of the interested witnesses as laid down by this Court is Roshin's case PLD 1977 SC 557. The prosecution witnesses had faced lengthy cross-examination but the defence had failed to shake their veracity."
' In some cases capital punishment may be awarded even on the basis of circumstantial evidence if sufficient to connect the accused beyond any reasonable doubts.
16. From the case-law it follows that in case where eye-witness charging a person with commission of offence, the Court is required to firstly determine whether he saw the occurrence, was in position to identify the accused, secondly can he be believed for the conviction of accused without corroboration. If it is found by the Court that the charge of the witness is reasonable from the available circumstance then in the absence of corroboration of witnesses it may be believed. Thus the corroboration of an interested witness in the above circumstances is not necessary always through some independent source. Reference may be given 1999 SCMR 141, wherein it is held that mere relation of the witness with the deceased is no ground for discarding his evidence. It is held that:-- "An interested witness in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (see lqbal alias Bhala v. State 1994 SCMR 1"
17. The same principle is adopted in case reported in PLD 2007 Supreme Court (AJ&K) 102, wherein it is held that conviction can be recorded on the basis of ocular testimony of natural and reliable witness without seeking any corroboration but the said testimony is required to be scrutinized with great care and caution. In some cases it is also held that relationship of a witness with the deceased is not alone sufficient to discard his testimony. The principle laid down in the above referred case is reproduced below:- "It is well-settled principle of appreciation of evidence that mere fact of witnesses being related inter se to deceased is not sufficient to discard their testimony outrightly if such witnesses otherwise found to be witnesses of truth. The witnesses found to be interested and inimical in sense of having a motive to falsely implicate innocent person from other party must be scrutinized very carefully and cautiously by the Court in order to eliminate the chances of false implication. This view finds support from a case reported as Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 which reads as under:- "After studying these authorities and considering the arguments, we have come to the conclusion that:-
(a) The mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony if otherwise such witnesses are found to be witnesses of truth.
(b) But where the witnesses are found to have been interested and inimical in the sense that they have a motive to implicate falsely innocent persons from other party, the Court should be on guard and cautiously look for some supporting circumstances with a view to eliminating the chances of false implication especially in cases where there is a background of blood feuds between the parties or a chain reaction of retaliatory murders."
18. As far as discrepancies etc. In the statements of eye-witnesses are concerned these are minor and cannot be taken into consideration against the prosecution for the reason that it is not uncommon because with the lapse of time minor discrepancies are bound to occur. In such case the question which would require determination is whether the discrepancies are material so as to render the veracity of the evidence of the witnesses as doubtful. For this purpose the Court is required to look over all structure of the prosecution case. In case the evidence of eye-witness coincides with other circumstances of the case like medical evidence and recovery of empties, then minor discrepancies are to be overlooked. In this case as stated above the recovery of empties of .7.62 bore and .30 bore pistol as well as medical evidence coupled with abscontion of the accused corroborates the evidence of witnesses, therefore, the minor 'discrepancies pointed out by learned counsel for the accused/appellants would be of no consequences. In this connection we may refer to 2003 YLR 753,wherein it is held "The occurrence of discrepancies in the evidence of the prosecution witnesses is not uncommon but the question which would require determination, is whether the discrepancies are material so as to render the veracity of evidence of the witnesses doubtful. For determination of such question the Court would always look to the overall structure of the prosecution case in order to see whether the evidence of the witnesses otherwise coincide with the other circumstances of the case. If the evidence given by the witnesses coincides with the other circumstances of the case, then minor discrepancies occurring in the evidence can always be overlooked."
19. In short the ocular evidence is straightforward, true and confidence-inspiring. It found support from medical evidence as well as other circumstances, therefore, is to be believed.
20. Now the second point to be determined, is abandoning, of three witnesses. It is true that three eye-witnesses namely Naqiaz Khan, Hameedullah and Saeedullah were abandoned by the prosecution. The arguments of learned defence counsel is that had these witnesses produced in the Court, they would have given true aspect of the case which could have gone against the prosecution. Now we have to see the reason of abandoning of eye-witnesses and next question to be examined is whether rest of the evidence produced by the prosecution is sufficient or not.
21. Record shows that P.W. Hameedullah was abandoned on 17-9-2003 being unnecessary, the other P.W. Naqiaz was abandoned oh the ground he gone abroad and has not available, the 3rd P.W. Waseedullah was also found unnecessary and was also not produced. The case of Naqiaz is clear that he was abroad and being not available, was not produced by the prosecution. As far as the remaining witnesses are concerned it is to be pointed out that the prosecution has produced Raqiaz Khan and Murad Khan, as P.W.6 and P.W.7., both of them are eye-witnesses. Therefore, their examination was necessary. The occurrence took place in their presence and they saw the accused firing at the complainant party.
22. As stated above their evidence is straightforward, believable and free from any material contradiction and was also corroborating by the independent source. In our opinion the evidence produced by the prosecution is sufficient to prove the charge against the accused. There was no need of further evidence. It is settled principle of law that quality and not quantity of evidence is to be considered. Even a single witness is sufficient for the conviction if he is truthful. The abandoning of these three P.Ws. Would not effect the case of prosecution. We may rely on 2005 PCr.LJ 667, wherein it is held that:- "It is cardinal principle of the criminal jurisprudence and is also consistent view of the august Supreme Court of Pakistan that it is the quality and not the, quantity which should weigh with the Court while evaluating evidence brought from both the sides on the record. We see no mitigating circumstance in this case in favour of appellant Muhammad Hanif even for the award of lesser sentence. Respectfully following the principles enunciated by the apex Court of the country from time to time and conscious of the duties on the shoulders of this Court. We find that the prosecution has proved its case to the bilt against all the three appellants."
23. Coming to the lodging of F.I.R., we would first refer to the same which is available on file bearing No,440 dated 11-10-2001. According to learned counsel for the accused/appellants it was lodged with a delay of one hour and, therefore, not reliable because there is every likelihood that prior to the registration of the case, the complainant party deliberated and consulted regarding false implication of the accused/appellants. In this case the occurrence had taken place at 1100 hours while it was reported at 1200 hours, thus one hour time was consumed in lodging of F.I.R. It is pointed out that three persons were murdered and three members of the complainant party were also injured. The complainant immediately after the occurrence had to arrange vehicle for shifting these six persons to save their lives. The priority before the complainant party was first to shill these injured persons and then to register the case. The record also shows that all the persons hit with the firing of the accused were shifted to the hospital while three of them Ismaeel, Shakeel and Javed succumbed to their injuries in the hospital. This shifting has taken time and accordingly the report seems to have been lodged after one hour.
Keeping in view the number of injured and deceased persons, the F.I.R. Is very promptly lodged.
There was no time for the complainant for deliberation and consultation for false implication of the accused because they were busy in shifting the injured to the hospital to save their lives. So we do not agree with this argument of learned counsel for the accused / appellants.
24. Another fact as sated on behalf of the accused/appellants, is that one of the accused nay', ly NasrAdin son of Farzand Ali was acquitted by Sessions Court and the judgment has got finality as no appeal has been filed against that acquittal. According to the learned counsel for the accused/appellants the same evidence has been produced by prosecution in this case, therefore, the present accused/appellants also deserve acquittal.
26. We do not agree with this preposition because developments in both these cases are different.
According to complainant party, in that case the accused was juvenile and was acquitted by the trial Court. This age was prevailed upon the trial Court. Moreover, there was a compromise between parties in respect of acquitted accused that is why appeal was not filed against him while there is no such compromise with the present accused/appellants. Another ground prevailed with the trial Judge was that the acquitted accused was a young boy and could not be held responsible for attempting at the lives of three persons. The said factors has made this case different from the case in hand and, therefore, benefit of the same cannot be extended to the present accused/appellants. In this connection we may also rely on AIR 1935 Peshawar 152, wherein it is held that:-- "We wish to make it quite clear that because an accused has been either acquitted or convicted, there is nothing in law to prevent another accused being subsequently tried and acquitted or convicted, even if the decision in the second trial differs from that of the original trial on exactly the same evidence. It is probable that in exactly the same evidence two, equally competent Judges will arrive at the same conclusion, but it is the duty of a Court to decided a case on the evidence before it without being influenced by the fact that another Court, has on the same evidence on a previous occasion came to certain conclusion."
27. Keeping in view the above discussion, we have reached to the conclusion that the acquittal of co-accused has no effect upon the case of present accused/appellants.
28. We may also refer to the abscondance of the accused/appellants after the occurrence. The occurrence took place on 11-10-2001. The accused Yasir Ali and Nasruddin were arrested on 12-11- 2001 while Abid Ali was arrested on 18-1-2002. In this way the two accused were arrested after remaining absconder for about 30/31 days and 3rd accused for about 42 days. Though the abscondance is for a short period, but which shall be considered against the accused/appellants as circumstantial evidence because no reason has been advance by them. So the abscondance in this case is also a circumstance to be taken against the present accused/appellants.
29. In this case motive is also relevant. The motive disclosed in the F.I.R. Is blood feud enmity between the parties. P.W.6. Has appeared in the trial Court and supported the motive. This portion of statement P.W.6. Has not been cross-examined nor has any negative suggestion been put to him. In this connection statement of accused/appellant Yasir Ali recorded under section 342, Cr.P.C, is relevant who was asked in question No,7 about the previous blood feud enmity with the complainant to which he answered in affirmative and admitted the said blood feud enmity. Similar is the statement of accused/appellants Abid Ali Khan and Ashraf Ali Khan who too have admitted the previous blood feud enmity. 'So the motive given in the F.I.R. Is proved by P,W.6 who is eyewitness. Furthermore, all the accused / appellants confirmed it. We may rely on 2005 PCr.LJ 667, wherein it is held that; "As far as motive is concerned, that was never challenged by the prosecution which stands proved. Not even a single suggestion was put to the eve-witnesses regarding false implication of the appellants in the present case. Even in their statements recorded under section 342, Cr.P.C.
Nothing has been said which could appeal to the mind of a man of normal prudence.".
We also rely upon 2005 PCr.LJ 667.
30. In view of our above discussion, the motive of blood feud enmity mentioned in the F.I.R. Has been proved by statement of P.W.6. As well as confirmed by accused/appellants. Therefore, motive is also to be taken against the accused/appellant.
31. One of the arguments of learned counsel for the accused/ appellants is that the trial Court has awarded sentence which shall run consecutively. We direct that the sentences shall run concurrently.
32. In short as discussed above, the prosecution has succeeded to prove case against the accused/appellants on the strength of ocular evidence, corroborated by medical evidence and recoveries. It is a daylight occurrence and the parties were known to each other and there is no doubt about the identification of the accused/appellants. The matter was reported promptly within one hour.
33. The result of our above discussion is that the conviction awarded by the trial Court on the basis of ocular evidence fully corroborated by independent source and needs no interference. The appeal in hand being without force is dismissed and the conviction of the accused/appellants is maintained. However, the sentence awarded by the trial Court shall run concurrently.
34. As far as criminal revision for enhancement of sentence is concerned, we may point out that no ground is taken in the same. The reason for lesser punishment awarded by the trial Court needs no interference. Hence, Revision Petition No,2 of 2005 is dismissed.
Appeal/.