KHALID MEHMOOD KHAN, J.----Through this single judgment we propose to decide the following cases:-- A. Criminal Appeal No.56 of 2010 filed by accused/appellants, namely, Muhammad Shafique, Taufique Ahmad and Nasir Ahmad against their conviction passed by learned Additional Sessions Judge-I, Lakki Marwat dated 20-4-2010 vide which they have been convicted under section 302(b), P.P.C. And sentenced to life imprisonment as tazir on two counts with payment of Rs.1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased. In default thereof further to undergo six months simple imprisonment. They were further convicted under section 324, P.P.C.
And sentenced to suffer five years rigorous imprisonment with fine of Rs.50,000. In default thereof further to undergo one year simple imprisonment. They were further convicted under section 337- F(ii)/337-F(iii), P.P.C. And sentenced to three years' imprisonment with payment of daman amount in sum of Rs.50,000. Appellant No.1 was also convicted under section 13, A.O. And sentenced to one year's rigorous imprisonment.
B. Muhammad Shafee filed Criminal Revision No.18 of 2010 for enhancement of sentence and the amount of compensation.
C. Muhammad Shafee also filed Criminal Appeal No. 64 of 2010 against the acquittal of accused/respondent, namely Haji Muhammad Rafique.
As all the above mentioned cases are arising out of the same judgment/order passed by the learned trial Court, therefore, are taken together for decision, through this single judgment.
2. Succinct facts of the present case as per F.I.R. Are that on 28-10-2008 at about 12:15 hours, dead bodies of the deceased Muhammad Latif and Muhammad Ashraf along with one injured Jehanzeb were brought to RHC Titter Khel, where report was lodged by complainant namely Muhammad Shafi to the effect that on the eventful day at morning vela his sons Muhammad Latif and Muhammad Ashraf left their house for the cattle fare at Pezu, while he was present in the house. At about 10.30 hours he was informed through mobile phone that his sons and nephew Jehanzeb have been fired at by Haji Rafique etc. Near the new boring (tube well) behind forest check post in the vacant ground, as result of which they have sustained injuries and have been shifted to RHC Titter Khel. At which he immediately rushed to the RHC, Titter Khel, where his sons Muhammad Ashraf and Muhammad Latif were found dead and his nephew Jehanzeb was seriously injured and was unconscious. On quary it was told by his brother Abdur Rashid that accused Sahfique Ahmad, Taufique Ahmad, Haji Rafique and Naseer Ahmad had come in their motorcar and had fired at them with their pistols, whom were being shifted to RHC Titter Khel. The occurrence was witnessed by Abdur Rashid and Muhammad Riaz besides other co-villagers. The motive is stated to be exchange of abuses about 2/3 months prior to the occurrence of the deceased along with accused party, hence case F.I.R. No.345 dated 28-10-2008 under sections 302/324/34, P.P.C. Read with section 13, A.O., Police Station, Pezu District Lakki Marwat.
3. Challan against the appellants/accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellants/accused 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 appellants/accused.
4. The prosecution examined thirteen witnesses during trial against the appellants/accused and then closed its evidence, where after statement of appellants/accused was recorded under section 342, Cr.P.C. Neither the appellants/accused recorded their statement on Oath nor produced any evidence in defence.
5. The learned trial Court after hearing arguments of both sides convicted the accused/appellants and sentenced him as per detail given in first Para of this judgment. Haji Muhammad Rafique accused/ respondent was acquitted of the charges levelled against him.
6. Learned counsel for the appellant argued that the report was lodged after a delay of 1.45 hours, the witnesses produced by prosecution are closely related to the complainant and two important eyewitnesses namely Abdur Rasheed and Mosa were abandoned by the prosecution. He contended that Abdur Rasheed informed the complainant Muhammad Shafee P.W.12 who is a star witness but he was abandoned by the prosecution. He submitted that F.I.R. Was lodged after preliminary inquiry and due deliberation and consultation and the recovery of empties and pistol were sent to the FSL after some days of recovery. He contended that P.W.10 is not a credible man because he himself in the cross-examination admitted that he conveyed the message to the complainant for giving him Rs.7,00,000. He further submitted that acquitted co-accused namely Haji Muhammad Rafique was not present at the spot as his plea of alibi has been proved and accepted by the trial Court. He urged that motive has been alleged in the F.I.R. Has not been proved by the prosecution. He further contended that there are six entrance/exit wounds on the body of the deceased, all the injuries arc described on the right side of the victims but as per site plan the same should have been caused on the left side of the victims. He also referred to the postmortem reports of the deceased and Medico Legal Report of the injured which contradicts the version of prosecution. He lastly contended that statement of Jehanzeb injured was recorded on 30-10-2008 after two days which has lost its credibility and the site plan has not been verified by the eye- witnesses.
7. On the other hand, learned counsel for complainant/respondent argued that the report has been lodged promptly, in natural manner because when the complainant received the information he rushed to the RHC, Titter Khel where his sons and injured nephew were called and had lodged a report. He contended that complainant was examined in the trial Court and nothing was brought on record to contradict his evidence. He submitted that P.W.11 Jehanzeb who was injured in the occurrence has charged the accused because he is natural witness and his presence on the spot is proved. He further argued that P.W.10 Muhammad Riaz is the eye-witness who fully corroborated the version of the injured witness. He urged that P.W.1 was examined who produced the pistol which was recovered from the person of accused Shafique Ahmad who was arrested by him after the occurrence when he was escaping from the spot. He further submitted that P.W.1 is disinterested witness who corroborated the version of prosecution. The distance of RHC, Titter Khel from the spot is 25/26 kilometers and therefore there is no delay in lodging of F.I.R. He further contended that nothing has been brought on record by the defence during lengthy cross-examination that delay was occurred due to any consultation or deliberation. He lastly argued that plea of alibi raised by the accused Haji Muhammad Rafique has not, been proved.
8. Arguments heard and record perused, in the light of which our discussion is as under.
9. The preposition in the present case is that:--
(i) Whether the ocular evidence produced by the prosecution is sufficient to convict the accused/appellants in the commission of offence?
(ii) Whether by abandoning of some eye-witnesses has damaged the prosecution case?
(iii) Is there any corroboration in the shape of recovery, medical and circumstantial evidence?
We would also consider the issue of delay in lodging F.I.R. And motive.
10. So far question of place of occurrence is concerned the same has been proved by the prosecution through eye-witnesses specially P.W.11 Jebanzeb who was injured during occurrence.
His statement cannot be discarded on the flimsy objection which was corroborated by the statement of Muhammad Riaz P.W.10 who had taken the injured P.W. Along with deceased to RHC, Titter Khel at the time of occurrence. It is pertinent to note that the accused and complainant party both are closely related to each other and question of false charging by the P.W.11 injured witness has not been proved beyond any shadow of doubt because nothing has been brought on the record that the said witness was not present on the spot or he has charged the accused in his personal grudges. No material contradiction in the statement has been brought on the record by the defence though he was cross-examined at length.
Moreover, the accused Shafique Ahmad was arrested by P.W.1 is disinterested witness and the recovery of pistol by him which had been sent to the FSL along with empties, result of which received is positive and thus corroborate the version of prosecution. The question raised by defence that as per site plan the injuries should have caused on the left side of the deceased whereas postmortem report the injury caused to the deceased on the right side. It is natural phenomenon that at the time of firing the human being not like a statute can stand in the same manner rather they are supposed to change their position to save their lives from attack, hence on the basis of this fact postmortem report cannot be B discarded.
11. Coming to the question of delay it is pointed out that the place of occurrence is 25/26 kilometers from the hospital. The complainant party has to make arrangements for shifting the injured to the hospital and for the said purpose the time has been consumed, so it is natural one, and delay is not occurred in the present case and is self-explained. Moreover, the delay caused is not fatal because it is not proved to have been made purposely for deliberation and consultation.
12. So far abandoning two eye-witnesses by the prosecution namely Abdur Rasheed and Mosa being won over to the accused party is concerned this question has been resolved by defence himself during cross-examination of P.W.11. Injured Jehanzeb in his statement has stated that his father has received Rs.10,000 or Rs.20,000 and Mosa has received Rs.1,20,000 from the accused party. Due to this apprehension the prosecution had rightly abandoned the said two witnesses.
Moreover, it is quality and not the quantity of the witnesses which is to be considered. It is the prosecution prerogative to choose the number of witnesses which in its opinion are sufficient for the proving of the case. If the evidence produced by the prosecution is worthy of reliance and confidence-inspiring, the number of witnesses becomes irrelevant. In the present case prosecution has produced two eye-witnesses and one independent witness P.W.1 who just after the occurrence had arrested one of the accused along with pistol and the empties recovered from the spot, regarding which the ESL report is positive. Medico-legal report and postmortem report fully support the prosecution version.
13. Motive in this case has been disputed by the defence by contending, that it was pleaded but not proved. This contention is true because the same has not been established beyond reasonable doubt but we have to see as whether non-proof of motive is fatal. The latest principle annunciated by the Apex Court is that -it is fatal if there is other evidence available. We may rely upon the principle laid down by the Apex Court in case reported in 2011 SCM R 856, wherein it is held; "Controverting the above contentions, learned DPG contended that motive of the offence disclosed by the complainant though was categorically urged at the trial by the ocular witnesses; which was believed by the learned trial Court but for reasons recorded in the impugned judgment, the same was not believed by the learned High Court which would not per se be fatal to the criminal liability of the petitioner duly proved through the ocular account of the P. Ws. Corroborated by the medical evidence, who carried no animosity oragainst the petitioner to falsely involve him in the case and being the natural witnesses of the occurrence, which took place within their view was sufficient to prove the charge against the petitioner. The motive setup by the prosecution even, if not proved or disbelieved for any reason would not ipso facto in the circumstances of the case affect adversely on the prosecution nor is the essential ingredient, constituting the offence proved through evidence of ocular witnesses, whose given account of the occurrence was not only straightforward and consistent rather worthy of implicit reliance and convincing, corroborated by medical evidence, therefore, the impugned judgment is unexceptionable."
Keeping in view the above latest principle we are of the view that mentioning of motive not adversely affect the prosecution case.
14. In short the evidence produced by the prosecutionis direct, consistent, straightforward, worthy reliance and confidence-inspiring corroborated by medical evidence, recovery of pistol and, empties from the spot and the FSL report being positive.
15. 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 is being without force, therefore, dismissed and the conviction of the accused/appellants is maintained.
16. As far as criminal revision for enhancement of sentence is concerned, we may point out that no good ground has been agitated for enhancement. The trial Court is competent forum to decide the quantum of sentence and in our opinion the sentence awarded is sufficient. Criminal Revision No.18 of 2010 being without force, is liable to be dismissed.
17. Appellant has failed to prove that the impugned judgment is perverse and As far as criminal appeal against acquittal is concerned, the there is any gross injustice. Now by acquittal an accused earns double presumption of innocence which cannot be set aside lightly. Resultantly the appeal against acquittal is also devoid of any force.
18. The result of our above discussion, both the criminal appeals No. 56 of 2010 and No. 64 of 2010 and Criminal Revision No.18 of 2010 are dismissed.