' MAZHAR ALAM KHAN MIANKHEL, J.---Through this judgment, we intend to dispose of Criminal Appeal No,300 of 2010 filed by Kashif, convict-appellant and a Murder Reference No,8 of 2010, sent by Additional Sessions Judge, Lahor District Swabi.
2. Muhammad Sareer Khan, ASI, P.W.7, on receiving information of an occurrence, reached RHC Kunda at 23:45 hours on 26-8-2007, where Waqar Hussain son of Moza Khan, in an injured condition, reported the matter to him in presence of Casualty Medical Officer Ina=llah, P.W.5, which was reduced in the shape of Murasila that on that very night, at 21:00 hours, he along with Javed and Faid son of Khan Sher and their relative Zubair son of Ali. Haider were sitting in his property known as Bagh Harum, when Akhtar Hussain son of Imran-udDin and Kashif son of Fazal Khaliq, duly armed with their respective fire-arms, appeared and opened fire. Resultantly, Javed, Faid and Zubair were hit, who succumbed to their injuries on the spot, while complainant received fire-arm injuries. The occurrence was witnessed by Umar Hussain son of Ali Haider P.W.6 and Fazal Hussain, their relative. Motive for the occurrence was stated to be an altercation a few days ago of the occurrence between the three deceased and the appellants. On the basis of Murasila, a case was registered vide F.I.R. No,589 dated 27-8-2007 under section 302/324/34, P.P.C. At Police Station, Lahore.
' The complainant of the case, being critically injured, after first aid, was referred to Peshawar where he succumbed to his injuries on 8-9-2007 at Khyber Teaching Hospital, Peshawar. The accused after the occurrence made good their escape which resulted into issuance of process under section 204, Cr.P.C. And proclamation notices under section 87, Cr.P.C.
' The appellant was arrested on 26-2-2008 when proceeding under section 512, Cr.P.C. Against both the absconding accused were in progress. Then a supplementary challan against him was submitted in the trial Court in March, 2008.
3. Prosecution to prove its case, produced ten P.Ws. P.W.1 Shafiur-Rehman escorted the injured and the dead bodies for medical examination/postmortem. He was also entrusted with search warrants under section 204 and then proclamation notices under section 87, Cr.P.C. Abdul Akbar being brother-in-law of Zubair deceased and relative of other deceased appeared as P.W.2, who identified the dead bodies of all the three deceased. He was also the recovery witness of blood- stained earth taken from the places of all the three deceased vide recovery memos Exh.P.W2/1 to Exh.P.W.2/3. He also witnessed the 'recovery of live round of .30-bore pistol vide recovery memo Exh.P.W.2/4 and the recovery of seven empties of 7.62 bore vide recovery memo Exh.P.W.2/5. He also signed the recovery memos Exh.P.Ws.2/6 to Exh.P.W.2/8 vide which the Investigating Officer P.W.9 took into possession the Mood-stained clothes of all the three deceased. Vide memo Exh.P.W.2/9 blood-stained clothes of the then injured/complainant Waqar Hussain were taken into possession. Tariq Saeed ASI who appeared as P.W.3 witnessed discovery/recovery of Kalashnikov, the crime weapon along with nine live rounds in the charger. The recovery memo is Exh.P.W.3/1.
Fazal Sher Khan ASI P.W.4 received murasila and incorporated' the same in F.I.R. Exh.PA. Waqar Hussain the then injured complainant was examined and provided first aid medical treatment by SMO Dr. Inamullah, P.W.5 who also prepared his medical report Exh.P.W.5/1 and injury sheet as Exh.P.W.5/2. The postmortems of all the three above named deceased were conducted by P.W.S. He while being cross-examined explained that the injured Waqar Hussain reported the matter to the police in his presence when he was medically examining him. The ocular account of the occurrence was given by Umar Hussain, P.W.6, the brother of deceased Zubair whereas the other two deceased were the cousins of his father. The person reaching first in the Hospital and recording the report in the shape of murasila Exh.PA/1 is Muhammad Sareer Khan, ASI, P.W.7 who also prepared the injury sheet Exh.P.W.5/2 of the complainant which was also endorsed by the doctor, P.W.8, Muhammad Jan Khan SI recovered the Kalashnikov, the crime weapon along with nine live rounds vide memo Exh.P.W.3/1 at the pointation of accused. He also verified the handwriting and signatures of Munawar Khan, the then SHO of Police Station Lahor, who had submitted the challan.
After registration of case and receipt of copy of F.I.R. And murasila, partial investigation was conducted by Bakht Bahadur Khan (Retd), S.I. Who appeared as P.W.9. All the recoveries exhibited as Exh.P.W.2/1 to Exh.P.W.2/9 were effected by him. He also sent blood-stained articles, so recovered by him, to FSL. Report of FSL in this regard is Exh.PK/1. Vide application Exh.P.W.9/2 sent the recovered empties from the spot to FSL for safe custody. Process under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Were issued on his application. Exh.P.W.9/3 and Exh.P.W.9/4 respectively.
Since postmortem report of Waqar Hussain the then injured complainant was not received by him, so he sought further time for submission' of challan vide application Exh.P.W.9/5 but post-mortem of the dead body after exhumation was exempted. However, he placed on record the medical record of the deceased Waqar Hussain on the judicial file. Then complete challan was submitted to Muhammad Saeed Khan SHO P.W. For further submission in court. The last witness of the prosecution was lady Dr. Robina, who appeared as P.W.10 and confirmed and verified the medical treatment given to Waqar Hussain. The accused thereafter recorded his statement under section 342, Cr.P.C. And denied the occurrence. On conclusion of the trial the learned Additional Sessions Judge, Lahor, District Swabi, vide his judgment dated 1-4-2010 convicted the appellant under section 302(b), P.P.C. As T'azir and sentenced him to death on three counts for committing the Qatl-e-amd of deceased Javed, Zubair Ali and Faid, besides the other sentences under section 324/337-D/337-F(v), P.P.C. The accused was also sentenced to a fine of Rs,9,00,000 payable to the legal heirs of all the three deceased in terms of section 544-A, Cr.P.C. Or in default of payment of fine to suffer six months' S.I.
4. Learned counsel for the appellant argued that being night occurrence, the identification of the appellant was open to serious doubt; the report was made with unexplained delay of 2:45 hours. He further argued that the ocular account furnished by the prosecution was contradicted by the medical evidence and the site plan whereas the other material eye-witness was not produced to support the version of prosecution. His next submission was that the alleged recovery of empties will have little value even after recovery of rifle as the same remained in the custody of police. It was also argued that motive was also not proved by the prosecution. Hence, the conviction and sentence of the appellant was liable to be set aside.
' The learned A.A.-G. Assisted by learned counsel for complainant argued that the appellant was directly charged in the F.I.R. Along with his absconding co-accused by the complainant who himself received injuries at the hands of appellant and his co-accused who later on succumbed to his injuries and his report assumed the status of a dying declaration; besides the complainant, the occurrence was also .Witnessed by Umar Hussain, P.W.6, who has given the ocular account of the occurrence and the defence failed to shatter his testimony; that the medical evidence and the recoveries of blood stained earth from the place of all the three deceased and the then injured complainant (now deceased), recovery of empties of 7.62 bore and recovery of Kalashnikov with positive report of F.S.L. Further supports the ocular account given by the eye-witnesses. The trial Court has rightly placed reliance on the ocular account along with corroborative evidence on the record and convicted and sentenced the appellant. He further argued that the motive alleged by the complainant (now deceased) was also proved.
5. We have heard the learned counsel for appellant and learned A.A.-G. Assisted by learned counsel for the complainant and have gone through the material available on the record.
6. The perusal of the record would reveal that the case of the prosecution is based on initial report Exh.PA/1 made by the then injured complainant who himself was badly injured. His report was recorded by P.W.7 Muhammad Sareer Khan in presence of Dr. Inam, P.W.5 who has also admitted this fact in his statement before the Court. His presence at the spot thus is established. He was referred to Peshawar for further treatment just after receiving first aid. He remained there under treatment and succumbed to injuries on 8-9-2007. His death was confirmed by Dr. Robin. S.M.O., Khyber Teaching Hospital Peshawar, P.W. 10, who explained that in spite of their hectic efforts for 20 minutes through the procedure of CPR, he could not survive and expired at 3-15 a.m. His report in this regard was Exh.P.W.10/1. His death in the circumstances assumed the status of dying declaration. Though post mortem of the dead body was not conducted which could be termed as nothing, but the ignorance of the aggrieved party who after his death, took the dead body straightaway to their village and buried there. When the cause of his death is established on the record that he died because of the fire-arm injuries received by him, then non-conduction of postmortem loses its value and it alone cannot be termed as a factum of doubt. Stance given by such person attains the status of dying declaration can well be considered as an evidence unless rebutted or shattered by the defence. The stance put-forth by him is quite natural. His report was recorded in presence of the doctor examining him. The overall material on the record would establish that the defence failed to shatter the stance of the deceased complainant. So, such a report cannot be discarded. Reliance in this regard can be .Placed or the case of "Niaz Ahmad v.
State" PLD 2003 SC 635, wherein death sentence was maintained on such a dying declaration.
' The version of the complainant then also gets full support from the ocular account of the occurrence given by Muhammad Hussain P.W.6. The defence also failed to make any dent in his statement. His presence at the spot was proved without any shadow of doubt. He being brother of deceased Zubair alone would not be sufficient to discard his statement when otherwise his statement is worth-reliance. He in the circumstances neither can be declared as interested witness nor chance witness.
7. The learned counsel for the appellant had laid much stress on the non-production of other eye- witness namely Fazal Hussain who was abandoned being unnecessary. This argument of the learned counsel, to our mind, would have no force as the statement of other eye-witness Umar Hussain P.W.6 coupled with dying declaration of complainant along with other corroborative evidence fully supports the case of prosecution. The law in this regard is also settled that it is the quality of evidence and not the quantity. Even a single confidence-inspiring statement of witness is sufficient for conviction of an accused. In Niaz Ahmad case (supra), death sentence was maintained on the solitary dying declaration of the deceased. So, this non-production as a witness would not be fatal to the case of prosecution and the defence also cannot derive any benefit from his non-appearance, when the dying declaration of the deceased complainant is confidence- inspiring and his version also is established by P.W.6 Muhammad Hussain.
8. The medical account of the case also supports the case of prosecution. The locale of injuries on the persons of all the deceased including the complainant would reveal that the same were on upper portion of the body. He has further explained that all the wounds on the victims were of the same dimension and size except the extensive wound on the forearm of Waqar Hussain injured complainant. So the medical evidence is also in consonance with ocular account.
9. As far as time of occurrence is concerned, it was alleged that being a night occurrence without disclosing source of light would create serious doubts on the identification of the accused. The learned counsel also produced moon phase calendar of Islamabad along with moonrise and moonset timings of Peshawar downloaded from internet, which are almost the same and there was no moonlight at the time of occurrence as per age of the moon appearing in the calendar, but this darkness of night would lose its importance when the distance between the assailants and the victims at the crime scene as shown in the site plan was 5 to 6 paces. When the parties are residents of the. Same area and known to each other can easily be recognized even in the dark room such close distance.
10. It was also argued that there was an unexplained delay of 2.45 hours in making the report, but we are aware of the fact that after the occurrence the injured and dead bodies of three deceased were shifted to the hospital and report was made in the hospital on arrival of ASI Sareer Khan.
Collecting the injured and dead bodies and the arranging for 'cots' and vehicls to shift them to the hospital from a distance of 7/8 kilometers from police station normally consumes this much time and such delay in the circumstances would not be sufficient that in such a situation, the complainant critically injured would be able to make a prompted report with consultations and deliberations.
11. The Investigating Officer, during the investigation has collected sufficient material forming the circumstantial evidence corroborating the ocular and medical account of the case would be yet another aspect proving the guilt of the appellant.
The prosecution without any shadow of doubt has proved its case against the appellant who was rightly convicted by the trial Court but the question would be as to what should be the of sentence when the motive alleged by the prosecution has not been proved and because of darkness it was impossible to determine that whose fire shots were fatal.
12. We can assess the material brought on the record to determine the quantum of sentence. The occurrence, no doubt, took place at night and because of darkness, it was not possible to determine that whose shots proved fatal. This aspect can be taken as a mitigating circumstance.
' Similarly, the motive was alleged by the prosecution but the record would reveal that the motive, as alleged by the prosecution, was not proved and remained obscure. So, in such like situation, sentence of death is uncalled for. Reliance in this regard can be placed on the case of "State v.
Muhammad Ashraf" 1998 SCM R 1764, 1994 SCM R 35 "Abdul Aziz v. The State". Since the appellant was sentenced under T'azir and not under Qisas, so the Court can exercise its discretion to award punishment of death or imprisonment for life to the accused for Qatl-eamd. Keeping in view the facts and circumstances of the case. Reliance in this regard can be placed on the case of "State v.
Sharafat Ali Khan" 2010 SCM R 1205, "State v. Muhamniad Ahmad (Mehmood Ahmad)", 2010 SCM R 660.
13. So, keeping in view all the above aspects of the case, we are of the opinion that the sentence of the appellant be converted into life imprisonment on three counts, by maintaining the other sentences intact.
14. So, the appeal is partially allowed to the extent of modification of sentence. All the substantive sentences shall run concurrently with the benefit of section 382-B, Cr.P.C. The murder reference is replied in negative.
Sentence reduced.