' MANZOOR AHMAD MALIK, J.-This judgment shall dispose of Criminal Appeal No,422-J of 2006 (Akhtar Ali v. The State) and Murder Reference No,585 of 2006 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Akhtar Ali (appellant) on two counts, as both these matters have arisen out of the same judgment dated 24-7-2006 passed by the learned Additional Sessions Judge, Jhang, whereby, Akhtar Ali (appellant) was convicted under section 302(b), P.P.C. (for the murders of Mst.Anwar Bibi and Murid Abbas) and sentenced to death on two counts. He was directed to pay a compensation of Rs,1,00,000 (Rupees one lac only) to the legal, heirs of both the deceased persons each in default whereof to further undergo S.I. For six months each in terms of section 544-A, Cr.P.C. However, benefit of doubt was extended to three co-accused of the appellant, namely, Safdar Ali, Muhammad Afzal and Sher Khan and they were acquitted from the charge and as per learned counsel for the , parties, no appeal against their acquittal was filed by the State or the complainant.
2. Brief facts of the case, as given by P.W.1 Mst.Ayesha Bibi (complainant) in the Private Complaint (Exh.PA) are that about six years prior to the occurrence, her marriage took place with Akhtar Ali (appellant), resident of Chak No,51- Tiwana, Sargodha but on account of strained relations, she was living with her mother Anwar Bibi (deceased). On 6-5-2004, she along with her mother Anwar Bibi (deceased) and brother Mureed Abbas (deceased), was present at their Dhari situated at Thathi Qureshian, Jhang, when, at about 4-00 p.m., her husband Akhtar Ali (appellant) along with Safdar Ali, Afzal and Sher Khan came to her mother in her presence and demanded her return but her mother refused and stated that she would send her (complainant) after deliberation, upon which, the accused persons left the house after extending threats of dire consequences.
Complainant has further stated that on 8-5-2004 at about 2-00 a.m. (night) when the complainant, her mother Anwar Bibi (deceased) and brother Mureed. Abbas (deceased) were sleeping at their said Dhari but on hearing some noise, she woke up and saw that Akhtar Ali (appellant) armed with a Carbine along with Safdar Ali, Muhammad Afzal and Sher Khan armed with .7 mm rifle, were present in the courtyard of the house. According to her, Akhtar Ali (appellant) fired two shots with his carbine which hit on the backside of her mother Anwar Bibi (deceased), upon which, her brother Mureed Abbas (deceased) also woke up, but, Akhtar Ali (appellant) fired a third shot which hit on his head. On the hue and cry raised by the complainant, Muhammad Iqbal and Ahmad Sher attracted to the spot and witnessed the occurrence. According to the complainant, the accused persons decamped from the spot along with their weapons of offence.
As per complainant, she and Ahmad Sher took care of Anwar Bibi and Mureed Abbas but both of them succumbed to the injuries at the spot. About the motive, the complainant has stated in the Private Complaint that on account of strained relations, she was expelled by her husband Akhtar Ali (appellant) from his house and her mother was not ready to send her back and on that account Akhtar Ali (appellant) in consultation with the acquitted co-accused killed her mother and brother.
She has also stated in the Private Complaint that regarding the occurrence, she lodged F.I.R. No,129 (Exh.PR) but the police did not enter the name of Sher Khan accused, whereafter, she made a supplementary statement and implicated him as an accused. Complainant has further stated in the Private Complaint that the Investigating Officer of the case joined hands with the accused party and on the basis of a fake statement of the complainant, declared Safdar Ali and Muhammad Afzal innocent, hence, she filed the Private Complaint.
3. The appellant was arrested on 4-7-2004 by Muzammal Hussain S.-I. (P.W.8.). During the course of investigation, on 17-7-2004 the appellant led to the recovery of .12 bore carbine (P7) from near the place of occurrence after digging out earth, which was taken into possession through memo Exh.PS. After filing the Private Complaint by the complainant, the learned trial Court got conducted an inquiry as envisaged under section 202, Cr.P.C. From the learned 'Judicial Magistrate, Jhang, where after, the appellant and his three acquitted co-accused who were arrayed as accused persons in the Private Complaint, were summoned by the learned trial Court to face the trial, copies were distributed amongst them and charge was framed on 14-3-2006, to which, they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has produced 08 witnesses, during the trial. Besides, Bakhtawar Khan Patwari (CW-1), Muhammad Rafique S.-I. (CW-2), Ahmed Sher son of Allah Bakhsh (CW-3), Ahmad Sher son of Khadim Hussain (CW-4) and Muhammad Iqbal (CW-5) also entered the witness box. The appellant, along with his co-accused, was examined under section 342, Cr.P.C.
He did not opt to depose on Oath as provided under 340(2), Cr.P.C. However, in defence, he produced copy of F.I.R. (Exh.DD), copy of plaint suit (Exh.DE) and list of witnesses Exh.DE/1. In answer to the question "why this case against you and why the P. Ws. Have deposed against you", Akhtar Ali (appellant), in his statement recorded under section 342 Cr.P.C., stated as under:-- "None of the P. Ws. Deposed against me except the complainant, who is inimical towards me as she herself had admitted that she had strained relations with me, so she had deposed against me because I had kicked her out from my house".
' In reply to the question "Have you anything else to say"? the appellant stated that:- "I am innocent. In fact one Ali Khan and his wife Mst. Sakina were murdered by Muhammad Afzal son of Mumtaz Khan and others who were P.O. In that case. Mst.Ayesha Bibi was living in their clutches during the days of occurrence. The above said Ali Khan and Mst.Sakina his wife are related to me. The said P.Os. Killed both the deceased of this case with a planning to get registered a case against me and my co-accused to get effected compromise in the above said murder case.
During the trial it has been proved that Mst.Ayesha was not sleeping at the place of occurrence instead thereof she was sleeping at the house of Inayat Khokhar far away from the place of occurrence".
' However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as detailed above.
5. Canvassing acquittal, learned counsel for the appellant, in support of this appeal, contends that there is a delay of six hours in reporting the matter to the police without there being any satisfactory explanation; that the circumstances of the prosecution clearly suggest that P.W.1 Mst.Ayesha Bibi (complainant) was not present at the spot at the relevant time of occurrence and to elaborate this point, learned counsel contends that it is the case of the complainant in the F.I.R.
That she was sleeping in her house along with her deceased mother Anwar Bibi (deceased) and brother Mureed Abbas (deceased) but during the spot inspection, the police found only two cots in the courtyard; that even in the Site Plan (Exh.PV/1) her presence has ' been shown at Point No,3 which is outside the house; that in her statement made before the police, the complainant has stated that at the time of occurrence she was sleeping in the house of one Inayat and attracted to the spot after hearing the fire shots but while appearing before the learned trial Court, she did not admit this fact but she was confronted with her previous statement made before the police and this fact was brought on record; that her presence at the place of occurrence at the relevant time is also belied by the fact because had she been present there she would have been the primary target of attack but she did not even receive a scratch at the hands of the appellant and that the prosecution has miserably failed to prove motive as, in the said situation, there was no occasion for the appellant to commit the murders. As far as recovery of .12 bore carbine (P7) which was taken into possession through memo Exh.PS and positive report of Forensic Science Laboratory (Exh.PX) is concerned,- learned counsel contends that the three crime empties were taken into possession from the spot on 8-5-2004, appellant was arrested on 4-7-2004, .12 bore carbine (P7) was allegedly recovered from him on 17-7-2004 through memo Exh.PS but both these articles i,e, Crime empties and Carbine were received in the office of the Forensic Science Laboratory on 22-7-2004 which is evident from the Report of the FSL (Exh.PX), therefore, the recovery of carbine and report of FSL are not helpful to the prosecution case; that in the F.I.R., along with the appellant, the complainant has implicated only two persons, namely, Safdar Ali and Afzal but in the Private Complaint, she has also introduced a fourth person, namely, Sher Ali; that three co-accused of the appellant, namely, Safdar Ali, Afzal and Sher Khan have been acquitted by the learned trial Court and no appeal against their acquittal has either been filed by the State or the complainant; that in the F.I.R. And Private Complaint, the complainant has cited two other witnesses of the occurrence, namely, Muhammad Iqbal and Ahmad Sher but they were given up by the complainant being won over; that the solitary statement of the complainant cannot be made basis for maintaining conviction and sentence of the appellant on a capital charge on two counts until and unless the same is corroborated by some other independent evidence which is very much lacking in this case; that it is the case of the prosecution that the statement of P.W.1 Mst.Ayesha Bibi (complainant) was recorded at 8-10 a.m. But according to Muzammal Hussain S.-I. (P.W.8) he received information about the occurrence at about 8-30/9-00 a.m. Through a Truck Driver; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, the appellant is entitled to acquittal.
6. While opposing this appeal, the learned D.P.-G. Assisted by the learned counsel for the complainant, contends that the appellant is named both in the F.I.R. And Private Complaint with a specific role of firing at both the deceased persons which proved fatal; that if the time of occurrence, circumstances of the case especially when there was no other male person available in the house and the distance of the police station from the place of occurrence are kept in view, then there was no conscious delay in reporting the matter to the police by the complainant; that the acquittal of three co-accused of the appellant has no bearing effect on the merits of appellant's case as no role was assigned to them as far as causing of injuries on the persons of both the deceased are concerned; that a straightforward motive has been brought on record and even the factum of existence of strained relations between the appellant and the complainant has been admitted by the appellant in his statement made under section 342, Cr.P.C.; that the ocular account in this case is supported by the medical evidence, the evidence of recovery of weapon of offence and positive of the Forensic Science Laboratory; that even conviction and sentence on a capital charge can be maintained on the basis of a solitary statement of a witness which inspires confidence because while deciding criminal cases it is the quality which weighs with the Court and not the quantity; that, even otherwise, in such-like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the appeal filed by the appellant against his conviction and sentence be dismissed.
7. We have heard learned counsel for the parties, have given anxious consideration to their respective arguments and have also scanned the whole record with their able assistance.
8. In this case, two persons, namely, Anwar Bibi (aged about 50 years) and her minor son Mureed Abbas (about 11/12 years old), lost their lives. As per F.I.R. (Exh.PR) and the Private Complaint (Exh.PA), the occurrence took place on 8-5-2004 at about 2-00 a.m. (night) in the house of the deceased persons situated at Thathi Qureshian, Jhang within the jurisdiction of Police Station Qadirpur which is at a distance of about 7-1/2 kilometers from the place of occurrence. The matter was reported to the police through Fard Bayan (Exh.PT) made by P.W.1 Mst.Ayesha Bibi (complainant) to Muzammal Hussain S.-I. (P.W.8) on the way to Police Station within the area of Thathi Qureshian, at about 8-10 a.m. On the same day, whereas, the F.I.R. Was registered at about 8-45 a.m.. The first contention of the learned counsel for the appellant is that there is a delay of more than six hours in reporting the matter to the police, but, we have noted that the occurrence took place in a village during the night time which was at a distance of more than seven kilometers from the Police Station Qadirpur Jhang, there was no male person in the family of the complainant who could report this matter to the police and the complainant was alone at home to attend dead bodies of her love ones i,e, real mother and brother, therefore, in the circumstances of this case we are of the A view that there was no deliberate or conscious delay in reporting the same to the police.
9. P.W.1 Mst. Ayesha Bibi (complainant), admittedly, is the wife of the appellant which fact has not been denied. It has also not been denied that on account of strained relations between both of them, she was not living with the appellant. There is also no denial to the fact that during the days of occurrence, P.W.1 Mst.Ayesha Bibi (complainant) was living in the house of her mother i,e, Anwar Bibi (deceased) whereas Mureed Abbas (deceased) was her real brother. In this eventuality, during the night time, her presence in the house of her mother along with her real brother is quite natural.
Both, in the F.I.R. And Private Complaint, it was case of the complainant that the incident in question, in which her real mother and minor brother were murdered, took place in her presence.
10. Though there is a document on `the record i,e, Exh.DB, which appears to be a statement of the complainant allegedly made before the police wherein it is mentioned that at the time of occurrence, the complainant was sleeping in the house of one Inayat, but, we do not find any reason for W.W.I Mst.Ayesha Bibi (complainant) to make such a statement before the police as in her first statement made before the police (Exh.PT), on the basis of which the F.I.R. (Exh.PR) was registered, she has clearly and categorically stated that she was sleeping at their Dhari along with her deceased mother Anwari Bibi and Mureed Abbas deceased and this could be one of the reasons which forced her to file the Private Complaint (Exh.PA). She has stated before the learned trial Court that "Police did not investigate the case honestly and fairly and police declared some of the accused innocent in connivance with the accused party". During the course of cross- examination, to a suggestion put to her, she has stated that "I had not stated before the police on 8-5-2004 that I was sleeping at the house of Inayat Khokhar at the time of occurrence and after hearing the noise of fire shots I came to the place of occurrence". One can imagine the difficulties faced by a woman of such a background in pursuing investigation of a double murder case against her own husband regarding the murder of her real mother and real sole minor brother, especially, when there was no male member left behind in the family. Even there was no reason on the record, as suggested on behalf of Akhtar Ali (appellant), that the complainant was in the house of one Inayat at the time of occurrence because no relationship of the said Inayat with the complainant has been brought on record. It was suggested to the complainant, during her cross- examination that she was not having good moral character. The question arises if she had such a character, as suggested from the appellant side then why the appellant was keeping the complainant in his house as his wife and why was demanding her return from her mother's house.
As P.W.1 Mst.Ayesha Bibi (complainant) is the wife of the appellant, therefore, no question of mistaken identity arises and the appellant cannot get any benefit from the happening of the occurrence during the night time. In our view, the complainant has reasonably proved her presence at the spot and even there is no reason for false implication of the appellant.
11. The medical evidence in this case has been furnished by P.W.2 Dr.Zafar Iqbal Patoana who conducted postmortem examination on the dead body of Mureed Abbas (deceased) and prepared Postmortem Examination Report (Exh.PB) and noted a firearm crushed injury on the top, right and left and back of his head. The allegation against the appellant is that he fired a shot with his .12 bore carbine which stamped on the head of the said deceased. The doctor has opined that the said injury was the cause of death of. Mureed Abbas deceased. P.W.5 Dr.Misbah-ul-Qamar conducted the postmortem examination on the dead body of Anwar Bibi (deceased) and prepared Postmortem Examination Report (Exh.PM). She noted six firearm wounds on her person. It was the prosecution case that the appellant fired two shots with his .12 bore carbine which hit on the back of Anwar Bibi (deceased) which are available as Injuries Nos.1, 2 and 3. As per doctor, Injuries Nos.1 to 6 resulted into the death of Mst.Anwar Bibi deceased. Both the doctors have opined that the probable time between the, receipt of injuries and death of both the deceased persons was immediate and between death and postmortem was from 12 to 18 hours which coincides with the time of occurrence given by the prosecution, so, the ocular account in this case is supported by the medical evidence.
12. As far as acquittal of three co-accused of the appellant, namely, Safdar Ali Afzal and Sher Khan is concerned, we have noted that no role, so far as firing on the person of both the deceased, was assigned to them, therefore, the case of the appellant is quite distinguishable from them and he cannot get any benefit from their acquittal.
13. So far as motive is concerned, it is case of the complainant in the F.I.R., Private Complaint and before the learned trial Court that she was married to the appellant about six years ago and due to strained relations she left the house of the appellant, came to her mother's house, where, on 6-5- 2004 at about 4-00 p.m., the appellant along with his acquitted, co-accused, came and asked for her return but complainant's mother i,e, Anwar Bibi (deceased) refused and stated that she will decide after deliberation, whereafter, the appellant and others left the place after extending threats of dire consequences. In the circumstances, when the appellant himself has not denied that P.W.1 Mst.Ayesha Bibi (complainant) was not living with him, the motive set up by the prosecution appears to be probable.
14. While coming to the recovery of .12 bore carbine (P7) which was taken into possession through memo Exh.PS by Muzammal Hussain S.-I. (P.W.8) and positive* report of Forensic Science Laboratory (Exh.PX), we may state here that the three crime empties were taken into possession from the spot on 8-5-2004 through memo Exh.PJ, appellant was arrested on 4-7-2004, .12 bore carbine (P7) was allegedly recovered at his instance on 17-7-2004 but both these articles i,e, Crime empties and Carbine were received in the office of the Forensic Science Laboratory on 22-7-2004 which is evident from the Report of the FSL (Exh.PX) and from the statement of Karamat Hussain (P.W.3) who deposited the same in the Laboratory, therefore, it is not safe to rely on the report of the Forensic Science' Laboratory (Exh. PX).
15. It is settled law that in criminal matters it is the quality of evidence which weighs with the Court and not the quantity, therefore, contention of the learned counsel for the appellant that on the basis of solitary statement of P.W.1 Mst.Ayesha Bibi (complainant), conviction on a capital charge of the appellant cannot be maintained, has no force. We have fortified our view by a judgment of the August Supreme Court of Pakistan reported in ALLAH BAKHSH V. SHAMMI AND OTHERS (PLD 1980 Supreme Court 225), wherein, at page 227 of the judgment, it was observed that "the general principle, on the other hand, is that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence, and not on its quantity". The above view was reiterated in the case of FAROOQ KHAN V. THE STATE (2008 SCM R 917), wherein, at page 921, it has been held as under:-- ,,9. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context, reference can be made to Mali v. The State (1969 SCM R 76), Muhammad Ashraf v. The State (1971 SCMR 350), Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State (1971 SCM R 659) and Muhammad Mansha v4 The State (2001 SCM R 199).
Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the 'emphasis' is on quality of evidence and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi (PLD 1980 SC 225)."
16. However, even if the report of FSL (Exh.PX) qua the carbine (Exh.PS) allegedly recovered at the instance of the appellant and crime empties (Exh.PJ) are taken out of consideration yet from the circumstances mentioned above, we are of the considered view that the prosecution has fully proved its case against the appellant beyond any shadow of doubt through the confidence- inspiring ocular account furnished by P.W.1 Mst.Ayesha Bibi (complainant) which finds full support by the medical evidence put forth by both the doctors i,e, P.W.2 Dr.Zafar Iqbal Patoana and P.W.5 Dr.Misbah-ul-Qamar who conducted postmortem examinations on the dead bodies of both the deceased persons and prepared Postmortem Examination Reports as Exh.PB and Exh.PM, respectively, and by motive, therefore, the above mentioned evidence is sufficient for maintaining the conviction of the appellant under section 302(b), P.P.C. On two counts which is hereby maintained.
17. To satisfy our own conscience, we have searched for the existence of a mitigating circumstance in favour of the appellant but failed and, rather, convinced that it is a fit case to maintain conviction and sentence of the appellant on a capital charge on two counts because merely on account of refusal to return his wife along with him, he became angry and killed complainant's mother for no fault of her. So much so, the appellant did not spare an innocent child of 11/12 years of age who yet had not entered the age of youth and whose only fault was that he was the real younger brother of appellant's estranged wife. After considering all the circumstances, we have reached at the conclusion that a man of such a callous temperament does not deserve any leniency, hence, this appeal is dismissed and sentence of death awarded to Akhtar Ali (appellant) I for the murder of both the deceased persons, namely, Anwar Bibi and Mureed Abbas, on two counts, along with the amounts of compensations, as awarded by the learned trial Court and imprisonments in default therefor, are hereby maintained.
' Murder Reference is answered in the AFFIRMATIVE and sentence of death of Akhtar Ali (appellant) is hereby CONFIRMED, on two counts.