' ATTAULLAH KHAN, J.--- Through this single judgment we propose to decide Criminal Appeal No,50 of 2008 filed by appellant Saifullah against his conviction passed by learned Addl: Sessions Judge- III, Bannu dated 3-6-2008 vide which he has been convicted and sentenced;
(1) Under sections 148/149, P.P.C. For three years' rigorous imprisonment with fine of Rs,3,000 and in default whereof to undergo one month's simple imprisonment.
(2) Under sections 302(b)/149, P.P.C. For committing the murders of deceased, Tariq Khan, Sardar Ali; Sabzali and Sakhi Zaman (on four counts) to life imprisonment and to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. In default to' undergo six months's simple imprisonment.
(3) Under sections 324/149, P.P.C. For attempting at life of Ali Abbas to seven years' rigorous imprisonment with fine of Rs,20,000. In default thereof further to undergo four months' simple imprisonment.
(4) Under sections 337-F(vi)/149, P.P.C. For causing injures to complainant two years' rigorous imprisonment with fine of Rs,2,000. In default thereof he shall be treated under section 337- Y of the P.P.C.
All the sentences were ordered to be run concurrently. However, benefit of section 382-B, Cr.P.C.
Was extended to the appellant.
2. Complainant Ali Abbas Khan has filed Criminal Revision No,13 of 2008 and State through A.G.
Criminal Revision No,21 of 2008, for enhancing the sentence of accused/appellant from life imprisonment to normal penalty of death and also for increasing the compensation amount. The above Criminal Appeal and Revisions 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. Succinct facts of the present case as per F.I.R. Are that complainant Ali Abbas Khan on 13-6-2005 lodged a report in injured condition to the police at casualty of Civil Hospital, Bannu that on the same day he along with his brothers Subzali, Tariq Khan, Hamza, Imran, Sardar Ali and his nephew Sakhi Zaman son of Tariq Khan were busy in their fields within vicinity of village Kotka Ghulam Qadir Khan where at 1820 hours his co-villagers accused Tehsil Khan, Bahader Khan, Gul Daraz, Shama Raz, Ihsanullah, Sharif, Hayatullah, Latif Khan, Atlas Khan, Muhammad Nawaz, Rahmatullah, Gul Zaman, Saifullah, Yousaf Khan; Muqarab came there with Kalashnikovs and shouted at the complainant party that why they were preparing breed in the fields and asked one another to kill and not to let any of them go alive. At this all the aforesaid accused starting firing as a result of which Sabzali Khan, Tariq Khan, Sardar Khan, Sakhi Zaman and complainant Ali Abbas were hit and fell injured to the ground while accused' decamped from the spot. The complainant has further stated that he later on came to know that his brothers Tariq Khan, ,Sardar Ali and his nephew Sakhi Zaman had died on the spot. Motive for the occurrence as stated in the F.I.R. Was the dispute over landed propeuty. Hence F.I.R. No,86 dated 13-6-2005 registered under sections 302/324/148/149, P.P.C. At Police Station, Hayed District Bannu.
4. Challan against the appellant was submitted 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 him; therefore prosecution was directed to record its evidence to prove guilt of the accused.
5. The prosecution examined fourteen witnesses during trial against the accused and then closed its evidence. Where after statements of accused was recorded under section 342, Cr.P.C.
6. The learned trial Court after hearing arguments of both sides convicted the accused/appellant and sentenced him as per detail given in first Para of this judgment.
7. Learned counsel for the accused/appellant contended that the ocular evidence in this case is not reliable as the eye-witnesses are related to the deceased, inimical and interested. No recovery of weapon of offence or empty is made in spite of the fact that fifteen accused fired at the complainant party. His third argument is that no blood has been recovered from the breed which is the scene of occurrence. The prosecution has abandoned P.W. Imran Khan eye-witness which reflects adversely the prosecution case. He further contended that the complainant or the eye- witnesses have failed to specify out of fifteen accused as to from whose fire shot five persons were hit. He urged that the medical evidence is in conflict with the ocular version. His last submission is that the motive is weak and also not proved.
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/appellant. They argued that the ocular evidence though consisted of related witnesses ,put their deposition is straight forward, trustworthy and defence has failed to establish any animosity, ill will or motive against them, therefore, they were rightly believed. They further argued that Imran Khan P.W. Was abandoned because two eye-witnesses have proved the case against the accused which is sufficient and; therefore, he was abandoned. They urged that the ocular evidence finds support and corroborating from the medical evidence coupled with abscontion of the accused. Their last submission is that the motive is proved and for the sake of arguments if it is not proved or weak even then it would not effect the case of prosecution because otherwise the guilt of the accused/appellant has been established.
9. We have considered the arguments from both sides and perused evidence of prosecution with care and caution, in the light of which our discussion is as below.
10. Keeping in view the arguments of learned counsel of the parties, the following points are before this Court for determination:--
(i) Ocular evidence.
(ii) Abandoning of eye-witness Imran Khan.
(iii) Corroboration.
(iv) Motive.
(v) Lodging of report.
11. Ocular evidence and abandoning of eye-witness Imran Khan: As per F.I.R. Complainant Ali Abbas (P.W.11), Hamzali (P.W.12) and one Imran Khan saw the accused while committing the offence. Out of these three witnesses the first two have been examined while Imran Khan was abandoned on 31-10-2007 by the prosecution being unnecessary and witnessed of the same fact. So we are having set of ocular evidence consisted of two witnesses P.W.11 and P.W.12. It is an admitted fact that these P. Ws. Are the brothers of the deceased and hence closely related. It is general principle of law that an eye-witness cannot be discarded or ruled out of consideration on the ground of relation with the deceased. The only criteria is as to whether the closely related witness is telling truth and has also no enmity against the accused. We may refer to 2002 SCM R 1586, wherein it is held that:- It is settled by this Court that mere relationship of a witness would not mean that the witness was interested and his testimony was not liable to be believed when the same is found to reliable, trustworthy and confidence- inspiring on the material points".
' As held above mere relationship of a P.W. With the deceased is no disqualification. P.W. Would be reliable when he narrates the occurrence at the time of trial without exaggeration and contradiction and the absence of enmity is proved. Similar view has been taken in case reported in 2003 SCM R 522 wherein it is held that:- "We may observe that relationship itself is no ground to discard and discredit the testimony of eyewitness unless it is shown that they are partisan and interested witnesses. The eye-witnesses in the present case. Undoubtedly are related to the deceased but they have been found entirely independent and truthful therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration.
However, in the present case as discussed above the ocular account is seeking ample support from the motive, the medical evidence and the attending circumstances."
' We also rely upon 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 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."
' Similar principle has been laid down in 1999 SCMR 141, wherein it is held that an interested witness in a criminal case is one, who has motive with the accused to falsely involve him in the case and mere relationship of the witness with the deceased or complainant party is no ground for disbelieving him. 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 alone is not sufficient to disbelieve 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 out rightly 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 report 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".
12. Keeping in view the above case-law we are required to determine as to whether the version of eye-witnesses is true, worth reliance and confidence inspiring and secondly whether they are inimical or interested against the accused. As far as the first fact is concerned we may have a look over the evidence of the P.W.11 and P.W.12. Examination-in-chief of both these P.Ws. Disclosed nothing fatal to the prosecution in terms that they are telling lie and their statements is inconsistent with each other as well as to the contents of the F.I.R. Whatever is reported in the F.I.R. Is confirmed by both the eye-witnesses. Their statements support the prosecution case and free from any improvement. They have narrated that what they saw on the spot at time of occurrence.
We have also gone through lengthy cross-examination put to these two P.Ws. And have come across no contradiction or anything else which may constitute a defect. The defence has tried to establish that someone else has committed the murder of four deceased. The first question in cross-examination was asked C from P.W.12 regarding, the murder of one Rahmatullah for which Tariq Khan, Sabzali and Wali Zaman were charged. Out of these three persons, two are the deceased, murdered in the case in hand while the other is also related to the complainant party.
The defence has tried to prove that the present occurrence is the result of that murders but this fact has not been proved on record. No motive has been proved in the cross-examination on the part of these two P.Ws. To falsely implicate the accused in the case. So in our opinion the evidence in spite of the fact that they were related to the deceased is to be believed as being true and straightforward and free from any animous. As far as the third witness Imran Khan is concerned he has been abandoned by the prosecution as he was witnessed of the same fact and was not necessary. Here question arises as to whether the non-examination of third eye-witness is fatal to the prosecution case or not. Here again we may refer to settled principle to the effect that it is not quantity of the evidence but the quality which is counted. If the prosecution has succeeded to prove the guilt of the accused through certain number of witnesses, they are not required to examine all the witnesses. In this regard 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 bill against all the three appellants", ' Similar principle has been acted upon in case report in 2007 SCM R 1519 the, relevant portion is reproduced as below:-- "Further, it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial. The petitioner if was satisfied that had Sadiq Hussain (the brother of the complainant) been produced at the trial would have spoken the truth in respect of the involvement of the petitioner in the case, the petitioner could have summoned the said cited witness through the process of the Court to be examined as the Court witness or in defence but no request admittedly had ever been made in such behalf therefore, non-production of the said ocular witness was not fatal to the case of the prosecution nor would it per se result in creating any substantial doubt on the prosecution case."
' Case reported in 1983 SCM R 697, also supports the above view in the following words:-- "The learned counsel also laid down stress on the fact that although Gul Muhammad Inspector Police had introduced a new and different version of the same case through his report under section 173, Cr. P. C, against 6 persons, five of whom are not mentioned as accused in the F.I.R. Yet the prosecution did not produce and examine the witnesses cited in support thereof. This contention overlooks the fact that it is well established that it is not incumbent upon the prosecution to produce each and every witness in the calendar of witnesses and it can drop or not examine any witness that it does not consider necessary."
13. Keeping in view the above verdict of the superior Courts it is now settled that only one witness is sufficient if he is truthful and his evidence is corroborated by E independent source. As stated above it is the quality and not quantity of evidence which is to be considered. The abandoning of eye-witness Imran Khan would not affect the case of prosecution because the evidence of P.W.11 and P.W.12 was sufficient to prove the guilt of accused/appellant.
14. Corroboration: In this case the ocular evidence has been corroborated by medical evidence as well as abscondance of accused. Doctor has examined the dead bodies of four deceased as well as the injured witness. Two entry wounds were found on the body of deceased Tariq, three entry wounds found on the body of deceased Sakhi Zaman, three entry wounds found on the body of deceased Sardar Ali and four entry wounds found on the body of deceased Sabzali. The number of injuries on the body of deceased as well as injured proved that number of culprits as charged in the F.I.R. Have fired at them. All the wounds were that of Kalashnikovs. The weapon of offence in this case is also Kalashnikov which has been attributed to all the accused including the accused/ appellant. One of the arguments of the learned counsel for the accused/appellant is that according to the site plan the accused fired at the deceased when they were available at Points Nos. 1 to 5 which is not Banna. According to him while the deceased party was busy in making Banna, they were fired at, therefore, the spot should have been Banna which is shown from points A and B in the site plan and not at Points Nos.1 to 5. We do not agree with this preposition because the Banna was mentioned as the cause of occurrence which was being prepared by the deceased.
At the time of firing the deceased must have changed their position and occupied the places shown in the site plan from 1 to 5. Being human the deceased were not statue and they were not supposed to stand on Banna. They were empty handed while the accused were armed with Kalashnikovs and there was also direction of firing, therefore, they must be tried to rescue themselves and during that effort the place was changed from Banna and similar would be the position of fire and direction of fire and seats of injuries on the bodies of deceased. Resultantly, this argument is of no avail to the accused. So we are of the view that the ocular version is corroborated by medical evidence.
15. Motive: The next point of determination is motive. In the F.I.R. And in the statement of two eye- witnesses the motive for the offence was shown as dispute over the landed property. In cross- examination no specific question has been put to the eye-witnesses regarding the motive; therefore, the same stand proved. For the sake of argument if motive is not proved or is held to be weak even then it will not damage the prosecution case because otherwise the guilt of the accused/appellant stand proved through other materials and, therefore, motive is not important.
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 eye-witness 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."
16. In view of our above discussion regarding motive we are of the affirm opinion that the same has been proved and also of no consequence in the presence of other material evidence connecting accused with guilt.
17. Lodging of report: It is also one of the objections of learned counsel for accused/appellant that the F.I.R. Was not lodged within time. Report is Exh.P.W.4/1, which was registered on 13-6-2005.
According to the F.I.R. The occurrence took place on 1820 hours and the report was made on 1930 hours with the delay of one hour and ten minutes. In this case four persons were murdered and one was injured. One of the deceased was in injured condition, therefore, complainant party was required to first make arrangements for the treatment of the injured and shifting of the dead bodies. This exercise has certainly taken time and that is why the report was lodged with delay of one hour and ten minutes. Moreover, there is a long distance between Hospital and place of occurrence, so circumstances and the distance itself explain the delay satisfactorily and, therefore, is not fatal.
18. In short as discussed above, the prosecution has succeeded to prove case against the accused/appellant on the strength of ocular evidence which is free from any contradiction and is trustworthy. The report was lodged with reasonable promptitude. No time has wasted for the deliberation and consultation or false implication of the accused/ appellant. The occurrence took place at daylight and there is no possibility of misidentification because the accused were already known to the complainant party. The defence has failed to point out any motive on the part of P.Ws against the accused/appellant. The medical evidence has fully corroborated the ocular version.
The accused/appellant remained absconder without any reasonable justification which is also a circumstance to be considered against him. The motive is also mentioned.
19. In view of our above discussion, we dismiss the instant appeal by maintaining the sentence and conviction of accused/appellant awarded to him by the trial Court vide judgment dated 3-6-2008.
20. As far as Criminal Revisions bearing Nos.13 and 21 of 2008 are concerned, it is for enhancement of sentence recorded by the learned trial Court. The learned State Counsel and complainant argued that it is a case of brutal murder, therefore, Court was required to award the normal penalty of death which needs to be enhanced because no mitigating circumstances are available.
We do not agree with the submission of the learned counsel for State and complainant because fifteen accused are charged for the murder of four persons and causing injuries to fifth. Specific role has not been attributed for effective fire shots hitting these five persons. The learned trial Court has stated in the impugned judgment that the complainant party has effect compromise with four of the accused, therefore, normal penalty of death was not awarded. We also consider the said compromise as mitigating circumstance. Moreover, the settled principles are that the trial Court is the best forum to determine the quantum of sentence and accordingly dismiss the Criminal Revisions Nos. 13 and 21 of 2008.