1. Naeem Akhtar Afghan, J.--This common judgment will dispose of Murder Reference No, 20/2006 forwarded.by learned Sessions Judge Lasbella at Hub against the appellant as well as Criminal Jail Appeal No, 90/2006 preferred by the appellant through jail against the judgment dated 16.12.2006 passed by learned Sessions-Judge Lasbella at Hub, whereby the appellant has been awarded conviction as under:-- "Accused Muhammad Ali son of Deen Muhammad is convicted under Section 302-(b) Qisas and Diyat (P.P.C.) and sentenced to death as Tazzir, he be hanged by neck till his death, with an amount of Rs, 1,00,000/- payable to the legal heirs of deceased Abdullah as compensation as envisaged under Section 544-A, Cr.P.C. payable to the legal heirs of deceased Abdullah in Case of default he has to suffer for a period of six Months S.I."
2. Brief facts of the prosecution case revealed from FIR No, 10/2004 dated 27.4.2004 lodged with Thana Bella at 4.45 P.M. by PW-1 Atiq-ur-Rehman under Section 302 Q&D Ordinance that the complainant was informed by Muhammad Raheem, Muhammad Usman and Ghulam Nabi that his real brother Abdullah has been murdered by the appellant (Muhammad Ali s/o Din Muhammad) and when he reached alongwith them to the house of his brother and enquired from his sister-in-law (widow of deceased) Mst. Sher Bano, she told that her brother Muhammad Ali (appellant) has made firing upon her husband while he was sleeping, when she wokeup she saw her brother armed, who was trying to run away and she tried to snatch the rifle and asked him what he has done, upon which he stated that she should keep quite and whatever he has done is right and thereafter he runaway armed. Complainant informed that previously as well the appellant had been advancing threats. It was further informed that the appellant is maternal cousin (Khala zaad) of the complainant. The complainant expressed lack of knowledge about the motive of the occurrence.
3. In pursuance of FIR registered on the basis of Fard-a-Bayan of the complainant, investigation was conducted, the police recovered two empties of Kalashnikov, blood stained earth and blood stand cloths of the deceased, search of accused was made in the vicinity and from near the bushes in the area of Kellari Nadi, one pair of Chappal alongwith motorcycle bearing no registration number allegedly left by the appellant, were taken into possession in presence of PW-9 Abdul Razzaque, Constable/Mashir of recovery memo., statements of the witnesses were recorded during investigation, inquest report was prepared. No post-mortem of the deceased was conducted, however death certificate was issued by Dr. Abdul Rasheed. The appellant was not arrested, as such, incomplete challan was submitted on 10.12.2004 against the appellant in absentia. However, on 30.5.2005 the appellant was arrested. No crime weapon was recovered from the appellant. It is alleged that the appellant after his arrest made disclosure about the occurrence and also made pointation of the place of occurrence. Complete challan was submitted against the appellant on 13.6.2005, whereafter the trial commenced before the learned Sessions Judge Lasbella at Hub.
4. At the trial the charge was denied by the appellant. The prosecution produced 14 witnesses, whereafter the appellant was examined under Section 342, Cr.P.C. the appellant got recorded his statement on oath as envisaged under Section 340(2), Cr.P.C. and also produced Khan Muhammad and Muhammad Hassan as defence witnesses to support his plea of alibi. After conclusion of trial, the learned trial Court awarded death penalty to the appellant vide impugned judgement and also awarded compensation of Rs, 100,000/-payable to the legal heirs of deceased Abdullah, in default thereof the appellant was to further suffer S.I. for six months.
5. Murder Reference No, 20/2006 was forwarded to this Court under Section 374, Cr.P.C. by learned Sessions Judge Lasbella at Flub for confirmation of death sentence or otherwise, the appellant also preferred Criminal Jail Appeal No, 90/2006 to this Court through jail. Mrs. Shabana Azeem, Advocate, was appointed as counsel for the pauper appellant by this Court.
6. Mrs. Shabana Azeem, learned counsel for appellant argued that the appellant has falsely been involved in the instant case by his real sister Sher Bano at the behest of PW-1 Atiq-ur-Rehman due to landed dispute between the parties. She further argued that the prosecution has not proved the case against the appellant beyond any shadow of doubt. She further stressed that no crime weapon has been recovered from the appellant. Learned counsel argued that the appellant proved plea of alibi, but trial Court has not appreciated the same. She prayed for acquittal of the appellant.
7. On the other hand Mr. Abdul Sattar Durrani, learned Additional P.G. appearing on behalf of State and Mr. Baqir Bakhtiar, learned counsel for complainant while controverting the arguments of the learned counsel for appellant supported the impugned judgment on the ground that sole testimony of PW-2 the solitary eye-witness duly corroborated in material aspects is sufficient to maintain the conviction. They further argued that the case has been proved by the prosecution beyond any shadow of doubt and normal penalty of death has rightly been awarded to the appellant in absence of any mitigating circumstance.
8. After hearing arguments of learned counsel for parties, we have gone through the record of the case.
9. Perusal of the record reveals that the occurrence has been witnessed by PW-2 Sher Bano, who happens to be real sister of appellant and widow of deceased, hence no question of mistaken identity arises at all. PW-2 in her statement before the Court deposed as follows:-- The incident is of 27.04.2004. I was present in the Court yard of my house sleeping alongwith my husband and children, at about 12/12-15 O'clock night I awoke and gave water to my younger son, meantime attracted by the voice of firing, saw my brother Muhammad Ali having a Kalashinkove and torch in his hand was standing near us who fired at my husband, I asked him that what has been done by him by destroying our lives, I attempted to snatch his Kalashinkove but not succeeded to do so, accused after making fire decamped from the scene of occurrence, accused committed the murder of my Husband. I was weeping on which Ghulam Nabi, Muhammad Rahim and Usman came there, I intimated the incident to them with the request for informing the same to his elder brother in Law Atique Rehman (elder brother of deceased), they conveyed the message to my brother in Law, there was no motive for committing crime or previous enmity between my deceased husband and accused, I identify the accused present in the Court."
10. PW-2 has attributed specific role of firing to the appellant resulting in unnatural death of her husband on the night of occurrence. PW-2 though related to the appellant, is natural witness and has no animus for false implication of the appellant, her presence at the spot cannot be doubted, which otherwise has not been challenged during cross-examination. The statement of PW-2 is further corroborated in material aspects with the statement of PW-1 Atiq-ur-Rehman as well as statements of PWs-3, 4, 5 and 11. PW-3 Ghulam Nabi and PW-4 Muhammad Rahim stated that they alongwith Usman (not produced at the trial) went to the house of deceased after hearing fire shots and found deceased Abdullah lying dead on a cot, where PW-2 informed that his brother Muhammad Ali (appellant) has committed murder of her husband with Kalashnikov and she requested them to intimate the brother of deceased Atiq-ur-Rehman PW-1 and they went to inform him on bike. The statements of these two witnesses have also not been shaken in cross- examination. The statement of PW-1 also finds corroboration of the circumstances, who on getting information of the occurrence by PW-3, 4 as well as Usman reached to the house of the deceased.
11. PW-11 is an independent witness of the locality, who further corroborates the statement of PW-2 by stating that in the night of occurrence his wife awoke him and told him about the voice of firing and when he came out of his house he saw the appellant having Kalashinkove on his shoulder going towards Jamia Masjid Goth on a bike and on hearing hue and cry from the house of deceased, he rushed to the house of deceased and found the dead body of Abdullah in a pool of blood on a cot. These statements of PWs are further corroborated by the statement of PW-5, who happens to be brother in law of appellant, who was awoke by male voice and when he came out of his house he found the appellant on a motorcycle having a Kalashinkove on his shoulder and according to PW-5 the appellant after informing him about the occurrence left on his bike. Careful perusal of record reveals that all the prosecution witnesses remained consistent throughout and there are no material contradictions or any dishonest improvement to discredit their testimony.
12. It is pertinent to mention here that in the inquest report Ex.P/12-C it has been mentioned that the deceased had one entrance wound of bullet on forehead having exist from the backside of head, two entrances wounds on his chest having exit from the back. No postmortem of the deceased was conducted, however, death certificate Ex.P/7-A was prepared by PW-7 Dr. Abdul Rasheed, which mentions only entrance and exit wound of the forehead/skull but finds no mention of the entrance wounds on the chest. This omission does not extend any benefit to the appellant as unnatural death of the deceased due to firing with Kalashinkove has not been disputed. More-so- over, the injuries have also been corroborated by PW-8 an independent witness of locality who is witness to the (recovery of dead body) Ex.P/8-E, which finds mention of fire-arm injuries on the forehead and chest of the deceased. PW-8 Qamar Din, further corroborates the recovery of two empties of Kalashinkove from the place of incident, recovery of blood stained earth as well as blood stained cloths of the deceased and has supported all the recovery memos. at the trial.
13. The pair of Chappal Art. P/11 as well as motorcycle Art.P/12 cannot be used against the appellant as no evidence h as been brought on record by the prosecution to connect these articles with the appellant. Further the alleged disclosure of the appellant is of no consequence and is inadmissible as the same has not led to recovery of articles or disclosure of any new fact. Similarly, the alleged pointation of the place of occurrence by the appellant is also of no avail to the prosecution as the place of occurrence was already known to the ponce. The alleged absconsion of the appellant for almost one year can also not be used as corroborative piece of evidence as in this regard no question was put to the appellant by the trial Court in statement under Section 342, Cr.P.C. More- so-over over the statement of circumstantial witness PW-6 (Muhammad alias Mamoo) is also discarded for the reason that his statement under Section 161, Cr.P.C. was not recorded on the day of occurrence and same was recorded on 8.6.2005 and no explanation has been offered for the delay occasioned.
14. The appellant at the trial claimed innocence, pleaded substitution and false implication due to landed dispute and also raised plea of alibi in support whereof the appellant recorded his statement on oath and also produced DW-1 Khan Muhammad and DW-2 Muhammad Hassan. At the trial all the prosecution witnesses denied the suggestion of the defence about the existence of landed dispute between parties and also denied the substitution for false implication of the appellant. It is to be appreciated that substitution of an accused person, who is actually involved in the commission of offence falling under Section 302, PPC is rare phenomenon particularly in an incident in which a single accused in involved by nomination in FIR from the very beginning and where the parties are inter se related to each other due to close kinship. Hence the theory of substitution cannot be accepted. In this regard we are supported by the dictum laid down in case of Muhammad Iqbal Vs. The State PLD 2001 S.C. 222 wherein it was held that:-- "Moreover we failed to persuade ourselves to hold that the accused was substituted by the complainant party because in the cases of murder falling under Section 302, PPC substitution of an accused who is actually involved in the commission of the crime is a rear phenomena in this country particularly in an incident in which single accused was involved by nominating him in the FIR from the very beginning. So much so if the parties are inter se related to each other, therefore, due to close kinship it is very hard to accept the theory of substitution."
15. In support of plea of alibi the appellant produced two witnesses in defence, but same are not corroborating the statement of the appellant on oath as the appellant in his statement on oath never deposed about the date on which he left for Ornach nor the appellant deposed that in Ornach he lived with DW-1 for four days nor he mentioned that he visited DW-2 Muhammad Hassan in Ornach. More-so-over, both the DWs never appeared before the Investing Officer for recording their statements. The evidence of the defence with regard to the plea of alibi is not consistent and confidence inspiring. The defence witnesses have not been able to put a dent in the prosecution case. The plea of alibi finds no corroboration from any piece of evidence. The appellant had raised special plea of alibi at the trial and burden of proving the same through reliable evidence was lying upon the appellant, but the appellant at the trial failed to substantiate his plea of alibi by reliable evidence, as such, the same is of no consequence in the circumstances of the case.
16. In view of the above discussed confidence inspiring testimony of solitary natural witness of the occurrence i,e, PW-2 being corroborated in material aspects by PW 3,4,5,8 & 11 and supported by recovery of empties of the Kalashnikov, blood stained earth and blood stained cloths we are convinced about sufficiency of the same for maintaining the conviction of the appellant. We find no misreading or mis-appreciation of evidence by the trial Court. With regard to basing the conviction of the appellant on the solitary statement of PW-2 we are supported by the dictum laid down in 1995 SCM R 1789, the relevant portion whereof is reproduced below:-- "The conviction of the appellants rested on the solitary statement of Muzaffar Khan P.W.4. No doubt, in a criminal case the conviction of an accused can be based on the statement of one witness without corroboration but the condition is that the witness should be absolutely dependable."
17. Similar view was held in 2001 SCM R 199, relevant portion thereof is also reproduced below:-- "The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof."
18. Similar view was also expressed in 2011 SCM R 725 in the following words:-- "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. "The reason being that it is the quality of evidence and not the quantity which matters."
19. Being satisfied with regard to the reliability of the corroborated confidence inspiring statement of PW-2, having no reason for false implication of the appellant being his real sister, we are only left to determine the quantum of sentence of death awarded to the appellant in absence of any motive and to determine as to whether the absence/ lack of motive can be treated as a mitigating circumstance for awarding lesser sentence. In this regard the settled principle is that, if the prosecution had succeeded in establishing the offence, then presence of motive or no motive would not be ground for awarding lesser punishment to the accused. Further this principle can only be invoked when the prosecution has not alleged the motive and in the instant case throughout the trial the prosecution has not alleged any motive and the witnesses have throughout expressed their ignorance/lack of knowledge about the motive of the occurrence. In this regard we are fortified by the dictum laid down in 2002 SCM R 1473, wherein it was held as under:-- "Now turning towards the argument of learned counsel for petitioner that if the prosecution has succeeded in establishing offence the presence of motive or no motive would not be ground for awarding lesser punishment to the accused. As far as the legal proposition is concerned there is no cavil with it but this principle would only be invoked when the prosecution has not alleged the motive but if the motive is alleged then it becomes its duty to prove the same, but if the prosecution failed to prove the motive so alleged and it has also not proved through convincing evidence that the accused has committed the crime charge against him then on considering non- establishing of motive to be a mitigating circumstance sentence can be awarded to the accused charged for the murder having regard to the facts and circumstances of the case."
20. Similarly, in case of Muhammad Akbar and others vs. The State PLD 2004 SC page 44 as well as in case of Muhammad Amin alias Irfan v. The state 2004 SCM R 1676 it was held that, lack of motive or weakness thereof is immaterial to Withhold the normal penalty of death in murder cases when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.
21. Hence we conclude that ocular evidence corroborated by independent witnesses of the locality in all material, aspect is trustworthy and reliable and the prosecution has abundantly proved its case against the appellant who effectively fired at the deceased causing him fatal injuries resulting into his unnatural death and there are no extenuating circumstances to award lesser punishment to the appellant. Since the guilt of the appellant for causing murder stands proved beyond reasonable doubt, the trial Court has rightly imposed normal penalty of death to the appellant.
22. It is to be noted that Courts owe duty to the legal heirs/relations of the victims' and also to the society, therefore, the sentences awarded should he such which should act as deterrent to the commission of offences. The approach of the Court should be dynamic and if the Court is satisfied that the offence has been committed in the manner as alleged by the prosecution the technicalities should be overlooked, without causing any miscarriage of justice.
23. Hence for the above reasons and the dictum laid down by the Apex Court, we find no merit in the instant jail appeal. The appeal having no force is dismissed. The conviction and sentence awarded to the appellant under Section 302(b), PPC vide judgment impugned dated 16.12.2006 by learned Sessions Judge Lasbela at Hub is upheld, consequently Murder Reference No, 20/2006 is answered in affirmative.