ALTAF IBRAHIM QURESHI, J.---Muhammad Shabbir alias Shero-appellant had been tried in case F.I.R. No,44, dated 2-2-2005, registered at Police Station Baghdad-ul-Jadeed, District Bahawalpur, and on conclusion of the trial vide judgment dated 21-6-2008 rendered by the learned Sessions Judge, Bahawalpur, he was convicted under section 302(b), P.P.C. for committing qatl-e-amd of Shabbir Ahmad deceased and sentenced to death with a compensation of Rs,50,000 payable to the heirs of the deceased as required under section 544-A, Cr.P.C. or in default of payment thereof to undergo S.I. for six months. Muhammad Shabbir alias Sheroo appellant has filed Criminal Appeal No, 168-J of 2008/BWP against the aforesaid conviction and sentence, which has been heard by us along with Murder Reference No, 11 of 2009 sent by the learned trial Court under section 374, Cr.P.C. seeking confirmation of the sentence of death passed by it against the convict-appellant. We propose to decide these matters jointly through the present consolidated judgment.
2. Briefly the facts of the prosecution's case set up in the F.I.R. (Exh.PD) got lodged by Allah Ditta complainant (P.W.7) are that he was residing in Chak No,12/BC and doing labour. On 2-2-2005 at about Asar Vela, the complainant and his son Shabbir were present in their house. On the asking of the inmates of the house, Shabbir Ahmad went out to purchase vegetables, but despite elapse of some time he did not turn-up. Then the complainant and his daughter-in-law Mst. Zubaida Mai came out of the house and saw Shabbir Ahmad coming at some distance, who was being chased by Muhammad Shabbir alias Sheroo appellant armed with repeater. The latter with the intention to kill Shabbir Ahmad made three fire shots upon him, who felldown. The occurrence was witnessed by Mst. Zubaida Bibi and Peer Bakhsh besides the complainant. The appellant succeeded in fleeing from the place of the occurrence while brandishing his repeater in the air. On hearing the sound of firing many people gathered there and after arranging the Dala, they transported Shabbir Ahmad in injured condition to the Bahawalpur Victoria Hospital, Bahawalpur.
The motive behind the occurrence, as alleged in F.I.R. was that about 6/7 years ago, the appellant had caused injuries to a friend of Shabbir Ahmad deceased and on his secret information, the appellant was arrested.
3. The investigation of this case was conducted by Abdul Rauf S.I. (P.W.12), who on having received the information about the occurrence visited B.V. Hospital, Bahawalpur, and submitted application (Exh.PH) for obtaining permission to record the statement of the deceased in injured condition.
Then he got conducted the medical examination of the injured and also recorded the statement of the complainant in the Hospital whereupon the F.I.R. was drafted at the Police Station. Thereafter the I/O proceeded to the place of occurrence where he prepared the unscaled site plan of the place of occurrence. He also collected three empties from the place of occurrence, which were secured along with the blood-stained earth vide memo (Exh.PF). After completion of the inspection proceedings, when he was on the way to Police Station, he received the information about the death of Shabbir Ahmad whereupon he reached the Hospital, the dead body of the deceased was inspected, injury statement and inquest report were prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were secured, the appellant was arrested on 12-6-2005, who while in police custody led to the recovery of repeater .12-bore (P6) along with 5 live cartridges from his residential house situated in Chak No,12/BC lying in the iron box underneath the cot on. 15-6-2005, which were secured vide recovery memo (Exh.PJ), formal site-plan of the place of occurrence was got prepared and on completion of the investigation a challan was submitted in the Court.
4. After delivery of the requisite documents under section 265-C, Cr.P.C, the learned trial court -had framed the charge against the appellant which was denied by him and he claimed to be tried.
5. During the trial, the prosecution produced as many as twelve witnesses in support of its case.
The ocular account was furnished by Allah Ditta complainant (P.W.7) while Mst. Zubaida Bibi (P.W.8) was declared hostile whereas the other eye-witness Peer Bakhsh was given up being won over. The medical evidence was furnished by Dr. Captain Muhammad Siddique, who on 2-2-2005 at 5-46 p.m. had conducted medical examination of Shabbir Ahmad deceased in injured condition and found the following injuries:--
(1) There was a lacerated wound 30 x 20 cm with inverted margins, protruding the muscles out of it and right medial and upper 1/3rd of lower leg. Movements were painful and restricted. X-Ray of right leg was advised.
(2) There was big lacerated wound 30 cm x 15 cm with inverted margins and having blackening around it at anterior aspect of left lower leg at upper and middle. third. Bone under the wound was broken into pieces. Neurovascular not found palpable. X-Ray of left lower leg was advised.
(3) There was 2 cm x 1.5 cm lacerated wound with inverted margins and having blackening around it at medial aspect of left knee. There was another wound 2 cm x 2 cm with everted margins at lateral aspect of left knee. Petella bone seems to be fractured. Hole was present on the Shalwar. X- Ray of left knee was advised. which were caused by firearm and Dr. N.A. Sherazi (P.W.3), who conducted the post mortem examination on the dead body of Shabbir Ahmad deceased on 3-2-2005 at 11-30 a.m. He noted the following injuries:--
(1) A lacerated wound in size of 10 cm x 06 cm on the supromedial aspect of right leg just below the knee joint. Muscles were crushed. Wad and distorted metallic foreign bodies were present in the wound, under lying bone tibia was fractured. Neurovascular damaged crossing the injured area.
(2) A lacerated wound in size of 03 cm x 1.5 cm on the medial aspect of left knee joint. Margins were inverted (Entry wound). It was connected to injury No,3.
(3) A lacerated wound on suprolateral aspect of left knee joint in size of 4 cm x 2 cm (Exit wound). It was connected with injury No,2. The under (sic) bone was also fractured.
(4) A lacerated wound on front of left lower leg in its upper half in size of 16 cm x 08 cm. The underlying muscles were burnt. Furthermore, the vessels and muscles were crushed and bone was fractured. The clotted blood was present in the wound. Distorted metallic foreign bodies were present in the wound. It was connected to injury No,5.
(5) A lacerated wound on lateral upper 1/3 of left lower leg in size of 6. cm x 4 cm in connection with injury No,4 and underlying damaged tissues were visible.
In the opinion of the Doctor, injuries No,1 to 5 were collectively sufficient to cause death in ordinary course of life. All injuries were ante-mortem in nature and caused with firearm weapon. Probable time between injuries and death was within six hours and between death and post-mortem was more than twelve hours and less than twenty four hours.
The investigation was conducted by Abdul Raouf SI (P. W.12), who deposed about the various steps taken by him during the investigation. The remaining evidence led by the prosecution was more or less formal in nature.
6. After close of the prosecution evidence, the appellant made statement under section 342, Cr.P.C. in which he denied the allegations and professed his innocence. However, he did not opt to make statement under section 340(2) Cr.P.C. or adduce the defence evidence. In reply to a question, why this case against him, the appellant replied as under:-- "The story narrated by the complainant is false and fabricated. I have not committed any crime.
The P. Ws. did not corroborate the version of the complainant. Complainant is the father of the deceased, hence he is interested witness and has deposed against me falsely in order to obtain some money from me".
7. Upon conclusion of the trial the learned trial Court through the impugned judgment after finding the prosecution's case to have been proved beyond reasonable doubt, recorded conviction and sentence as detailed in. para 1 ante. Hence, the present matters have been brought before this Court.
8. The learned counsel for the appellant in support of this appeal contends that the prosecution failed to produce any independent witness to prove the case against the appellant and the sole evidence of Allah Ditta complainant (P.W.7), who being father of the deceased and an interested witness, cannot be relied upon for maintaining conviction against the appellant in a case of capital sentence. Further contends that it was the case of the prosecution that except the complainant, the P. Ws. namely Mst. Zubaida Mai and Peer Bakhsh also witnessed the occurrence but Peer Bakhsh P.W. was given up by the prosecution being unnecessary whereas Mst. Zubaida Mai appeared before the Court as P.W.8 but did not support the prosecution case and, therefore, she was declared hostile and now there is a solitary statement of the complainant; which cannot be relied upon for the reason that he took the deceased in an injured condition to the Hospital but in the relevant column of Medico-Legal report (Exh.PG), his name is not mentioned. Moreover, he is closely related to the deceased as such an interested witness and even otherwise his evidence does not inspire confidence. Further contends that the said P.W. has stated that the deceased was fired at from the distance of three karams whereas the Doctor (P.W.3) noted blackening around the wounds, which means that the shot was fired from a close range. It is next contended that no importance is attached to the recovery of weapon. and the positive report of Forensic Science Laboratory, as no independent witness was associated in the recovery proceedings. As far as the motive is concerned, learned counsel contends that in the F.I.R. the complainant alleged that 6/7 years ago, the appellant injured the friend of the deceased and on his information Shabbir Ahmad was arrested but while appearing before the Court, he (P.W.7) stated that he is not aware as to why his son was murdered. It is lastly contended that in these circumstances, the appellant is liable to acquittal.
9. The learned Deputy Prosecutor-General appearing on behalf of the State assisted by learned counsel for the complainant has opposed this appeal on the grounds that the appellant is nominated in a promptly lodged F.I.R.; that the occurrence took place at Asar vela whereas the matter was reported to the police at 5/6 p.m. and the deceased, who was injured at the relevant time, was shifted to the Hospital at 5-46 p.m., which is clear from MLR Exh.PG. and in a criminal case it is always the quality and not the quantity of the evidence which matters; that the prosecution has been able to prove the case beyond any shadow of doubt; that the medical evidence is in line with the ocular account inasmuch as the injuries with firearm weapon were found on the person of the deceased, which resulted into his death; that the complainant had no previous enmity to falsely depose against the appellant and keeping in view the number of injuries the other persons could also be involved if the complainant had any intention to falsely implicate the innocent persons as well; that it was a broad-daylight occurrence and the appellant was the single accused, who was previously known to the complainant and there was no chance of misidentification of the appellant or his false implication by letting off the real culprit; and that the appellant had acted in a brutal manner, who made three successive fire shots, which proved fatal and the report of Forensic Science Laboratory, Punjab (Exh.PN) also supports the prosecution case, as the crime empties were fired from the recovered weapon of offence ; that the appellant is not entitled for any leniency in the quantum of sentence, hence the death sentence awarded by the learned trial court may be confirmed.
10. We have heard the learned counsel for the parties at length and also gone through the record of this case with their able assistance.
11. The occurrence in this case took place at about Asar Vela on 2-2-2005 in the area of Chak No,12/BC, which situates at a distance of about 19 K.Ms. from PS Baghdad-ul-Jadeed, Bahawalpur.
Shabbir Ahmad, deceased in injured condition was shifted to the BV Hospital, Bahawalpur, who was also medically examined by Dr. Captain Muhammad Siddique (P.W.9) on having been produced by the police at 5-46 p.m., which has given support to the version of the prosecution that the I/O Abdul Rauf SI (P.W.12) had reached the hospital on receiving information about the occurrence, where Allah Ditta complainant (P.W.7) got recorded statement (Exh.PD/1) at 5-50 p.m. on the basis of which the formal F.I.R. (Exh.PD) was drafted at the Police Station the same day at 6-05 p.m. As such it can easily be concluded that there was no delay in reporting the matter to the police. The F.I.R. was recorded with promptitude and it has ruled out the chances of consultation; deliberation or concoction of the story for the false implication of the A appellant as a single accused. The contention of the learned counsel for the appellant that no F.I.R. number was given on the application (Exh.PH/1) moved by the I/O to the doctor for getting permission to record his statement is of no help to the defence as the said application as per prosecution version itself had been submitted before registration of the F.I.R. It has been held by the Hon'ble Supreme Court in "The State v. Muhammad Yasin" (1995 SCM R 635) that prompt lodging of F.I.R. could be considered as a circumstance to corroborate ocular testimony, but the question would arise as to what version of the incident was stated in F.I.R. and whether it was believed by the court and how the same had been evaluated.
12. To prove the ocular account the prosecution got examined Allah Ditta,. complainant (P.W.7), who is father of the deceased and he fully supported the prosecution version narrated in the F.I.R. whereas Mst. Zubaida Bibi (P.W.8), who was the other alleged eye-witness, did not support the prosecution version and she was declared hostile. It was held in Muhammad Ayub and another v.
The State" (1983 PCr.LJ 710) that the evidence of a hostile witness normally loses its evidentiary value and cannot be used either in favour of prosecution or against it. Now the prosecution is left with the statement of Allah Ditta complainant (P.W.7) and the question arises that whether his solitary statement can be accepted for maintaining the conviction against the appellant? It is now well-settled law that in criminal cases, it is the quality and not the quantity of evidence which is required to bring home charge to the accused and even the evidence of a solitary witness can be relied upon, if the same is found to be reliable being trustworthy and of unimpeachable character.
The case law regarted as "Arshad Mehmood v. The State" (2005 SCM R 1524) may be referred in this respect wherein the august Supreme Court of Pakistan has held as under:-- "Quality and not quantity of evidence was required to prove against the accused---Conviction of accused in circumstances, could be based on sole evidence of mother of deceased."
It has also been held in "Akbar v. The State" (2007 M LD 1511) that no particular number of witnesses is required to prove the prosecution story. Even solitary statement of a witness appearing reliable and confidence inspiring is deemed sufficient for bringing home guilt of the accused. Reference may also be made to the case law report in "Rahim Shah v. The State and another" (2004 PCr.LJ 1129) and Arab Gul v. Mir Shah Baz and another (2004 PCr.LJ 1138). Although the complainant (P.W.7) is closely related to the deceased being father, but it is now well-settled proposition that mere close relationship of the witnesses inter se and with the deceased is not sufficient to term them as interested witnesses. The defence failed to bring on the record any enmity or mala fide on the part of the complainant for false implication of the appellant by letting off the real culprit, if he had not committed the occurrence. The substitution of the real culprit is a rare phenomenon where the complainant is father of the deceased. It was a broad-daylight occurrence to have been committed at about Asar Wela within the Abadi of Chak No,12/BC Janoobi. According to the site plan (Exh.PK), which was prepared by the I/O immediately after 'registration of the F.I.R., the place of occurrence located within the residential houses and the house of the complainant (P.W.7) was also shown in the said lane. The time, place and the manner in which the occurrence took place lead us to draw an inference that the occurrence could not go unnoticed as the presence of the persons of the 'locality at the relevant time was quite natural and the deceased in injured condition was immediately shifted to the BV Hospital, Bahawalpur where he was medically examined by the doctor (P.W.9), who found three injuries with firearm on different parts of the body and during the cross-examination it was explained by him voluntarily that the injured person was produced before him within one hour or so. When the I/O (P.W.12) arrived in the hospital after receiving the information about the occurrence, the complainant (P.W.7) was present there, who got recorded statement (Exh.PD/1) at 5-50 p.m. on the basis whereof the formal F.I.R. was drafted at the Police Station at 6-05 p.m., which are the circumstances to support the version of the complainant that he had accompanied the deceased, who was in injured condition at that time, to the hospital immediately after the occurrence. The place of the occurrence was not disputed by the defence, which was quite close to the house of the complainant (P.W.7) as shown in the site plan (Exh.PK) and he was a natural witness, who has sufficiently explained his presence there at the time of the occurrence. The defence failed to bring on record any material to show that at the relevant time, the complainant could not be present at his house and it was not possible for him to witness the occurrence in the manner narrated by him. As such, we are satisfied that the evidence of Allah Ditta (P.W.7), which is further supported by medical evidence inspiring confidence and it has been rightly relied upon by the learned trial court for recording conviction against the appellant.
13. So far as the recovery evidence is concerned, it is noticed that during the first spot inspection just after registration of the case on 2-2-2005, the I/O (P.W.12) had collected three empty cartridges, E (P5/1-3) from the place of occurrence which were made into a sealed parcel and taken into possession along with the blood-stained earth vide recovery memo (Exh.PF) and the same was attested by Allah Ditta complainant (P.W.7). The said parcel was kept at the Malkhana in safe custody by Allah Bakhsh ASI (P.W.1), which was further handed over to Tariq Javed constable (P.W.2) on 24-2-2005, who transmitted the same into the offices of Chemical Examiner and the Forensic science Laboratory respectively on 25-2-2005. Subsequently the appellant was arrested on 12-6-2005 by the I/O (P.W.12), who also got recovered repeater .12 bore gun (P6) along with five live cartridges from his residential house situated in Chak No,12/BC Janoobi lying in an iron box underneath the cot, which was taken into possession vide recovery memo (Exh.PJ) and the same was attested by Bashir Ahniad (P.W.10). The defence failed to show any enmity or mala fide against the said recovery witnesses for deposing falsely 'against the appellant or creating such evidence with any mala fide intention. The parcel of the said weapon of offence had also been deposited in the office of the Forensic Science Laboratory on 22-6-2005 by Allah Bakhsh ASI (P.W.1). According to the report of the Forensic Science Laboratory (Exh.PN) two crime empties had been fired from the shotgun got recovered by the appellant and the same provides sufficient corroboration to the ocular account furnished by the prosecution.
14.So far as the motive is concerned, we may observe that in the FIR specific motive was alleged by the complainant that about 6/7 years prior to the occurrence, the appellant had caused injuries to a friend of Shabbir Ahmad deceased and on his secret information, the appellant was arrested, but while appearing in the witness box as P.W.7 it was stated that he did not know as to why the appellant killed his son. Therefore, the prosecution has not been able to prove the motive. However, mere non-proving of the motive is not sufficient to disbelieve the ocular account, which even otherwise has been proved through the evidence of unimpeachable character.
15.The medical evidence produced by the prosecution had provided full support to the ocular account inasmuch as the date, time of occurrence, the weapon used and the seat of the injuries stated by the eyewitnesses. The defence failed to bring on record any material to show that the occurrence had not taken place at the time given by the prosecution and its time was changed to suit the prosecution for false implication of the appellant. As regards the contention of the learned counsel for the appellant that the ocular account is in conflict with the medical evidence as the complainant while appearing as P.W.7 stated that the appellant had fired from a distance of about three karams from the deceased while the doctor P.W.9 opined that the said injuries could be caused from a range of two feet only as there was blackening, suffice it to say that the complainant is a rustic villager and he cannot be expected to have given the exact distance. Even otherwise the appellant was alleged to have made firing while running and it was not possible for the complainant or anyone else to watch each and every movement of both the assailant and the victim and any variation of some feet in the distance between the assailant and the victim while causing the injuries with fire arm is not fatal to the ocular account, which has been found of unimpeachable character.
16.For the foregoing discussion, we are satisfied that the prosecution has succeeded in bringing home guilt to the appellant for committing qatl-e-amd of Shabbir Ahmad deceased through the evidence of unimpeachable character. As such the conviction of the appellant recorded by the learned trial court under section 302(b), P.P.C. is maintained. So far as quantum of sentence is concerned, we have found that the prosecution has failed to establish the motive alleged in the G F.I.R. that there existed previous enmity between the parties. It was the case of the prosecution itself that the deceased had gone outside the house for fetching vegetable, who did not return for a considerable period whereupon the complainant came out of the house for searching him and saw that the appellant was running after the deceased and made three successive fires upon him, therefore, the immediate cause, which resulted into commission of this crime, has not been brought on the record. The Hon'ble Supreme Court in "Ghulam Abbas v. Mazhar Abbas and another" (PLD 1991 Supreme Court 1059) has held that it is the discretion of the court to decide about quantum of sentence keeping in view facts and circumstances of each case. In ."Muhammad Tariq v. The State" (2003 SCM R 531) the death penalty was converted to life, G imprisonment as the motive was not proved and immediate cause of fateful occurrence had remained shrouded in mystery, as the fire-shots were on non-vital parts of the deceased.
Resultantly, the death sentence awarded to the appellant by the learned trial is converted to life imprisonment. However, the direction for payment of compensation to the legal heirs of the deceased made through the impugned judgment and imprisonment in default thereof is upheld.
The benefit under section 382-B, Cr.P.C. is also awarded to the appellant. The impugned judgment stands modified accordingly and Criminal Appeal No,168-J of 2008 is dismissed.
17. Murder Reference No,11 of 2009 is answered in the negative and sentence of death is NOT CONFIRMED.