Raja Saeed Akram Khan, J.--Since both the above titled appeals arise out of a single judgment of the Shariat Court dated 27.1.2005, whereby the appeals filed by the accused-convict as well as the complainant were dismissed while upholding the judgment passed by the District Criminal Court, therefore, the same are disposed of by this single judgment.
2. After fulfilling all the codal formalities and completion of investigation, the challan was submitted before the Tehsil Criminal Court, Bhimber, on 14.6.1987. The Tehsil Criminal Court, after examining all the evidence and material available on the record, decided the case on 29.9.2001, whereby Ishtiaq Ahmed, appellant, herein, was convicted. Against that order an appeal was filed before the District Criminal Court, Bhimber, which remanded the case to the Tehsil Criminal Court, Bhimber, on some technical grounds vide judgment dated 23.11.2001. A difference of opinion arose between the members of the Tehsil Criminal Court. The learned Senior Civil Judge/ Magistrate 1st Class vide order dated 27.2.2002 convicted the convict-appellant under Section 307, A.P.C. while awarding him 10 years' R.I. and Rs, 15,000/- as fine whereas the Tehsil Qazi, the other member of the Court vide order dated 27.3.2002, while disagreeing with the opinion of learned Senior Civil Judge/Magistrate 1st Class, convicted the accused and awarded him the sentence of diyyat amounting to Rs, 1,51,632/- under Section 15 of the Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974 on the ground that convict remained in judicial lock-up for 1 3/4 years. A reference was made to the District Criminal Court, Bhimber. The District Criminal Court maintained the judgment and order passed by the Tehsil Qazi while disagreeing with the opinion of the Senior Civil Judge/Magistrate 1st Class and the appellant was convicted with punishment of Diyyat amounting to Rs, 1,51,632/- and the sentence already undergone by the convict-appellant. Feeling aggrieved from the judgment of the District Criminal Court, Bhimber, the convict-appellant filed an appeal before the Shariat Court for his acquittal whereas the complainant filed an appeal for enhancement of the sentence. After consolidating both the appeals, the learned Shariat Court, vide impugned judgment dismissed both the appeals. This judgment of the Shariat Court is impugned through these appeals.
3. The prosecution story, as narrated by the complainant, namely, Abdul Khaliq, is that on 16.3.87 a written report was made by him at 9.30 p.m. before Muhammad Rafique, A.S.I, at District Headquarter Hospital, Mirpur, which was sent to the Police Station, Mirpur, where a case under Section 307, A.P.C. read with Section 15, Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974 was registered. The allegations levelled in the F.LR. are that on 16.3.1987 at 3.00 p.m. the complainant along with his brother, Bashir Ahmad, had gone to Thathi. They were in the way back from Thathi at 3 p.m. along with the Dispensar, Raqeeb Ahmad. When they reached near Nallah Skattar, Ishtiaq, appellant, arrived there who was armed with 12 bore double barrel gun.
He raised a lalkara that they will be done to death and from a distance of 4-5 yards, fired a shot upon Bashir Ahmad with intention to kill him which hit him upon the left leg. In the result of fire shot the bone of his leg was broken and blood started oozing from the injuries. Bashir Ahmad fell down on the ground. The occurrence was witnessed by Raqeeb and Niaz Ahmad along with complainant.
The motive as stated by the prosecution is that the complainant and Riaz were at strained relations with each other. One week prior, the complainant raised an objection about the participation of Riaz Ahmad in a marriage ceremony of his cousin. On account of this grudge, Ishtiaq, accused, who is close relative of Riaz Ahmad, launched the murderous attack upon the brother of the complainant.
4. After submission of the challan, a charge was framed against the accused under Section 307, A.P.C. who pleaded not guilty and opted to face trial. The prosecution has examined as many as 12 witnesses, namely, Abdul Khaliq, Muhammad Raqeeb, Shabbir Hussain, Fazal Kareem, Muhammad Sadiq, Bashir Ahmad, Mushtaq Ahmad, Muhammad Latif, Muhammad Raifque, ASI Police, Ch. Muhammad Afzal, SP and Akram Hussain, ASI Police while Javed Akhtar, Superintendent, District Headquarter Hospital, Mirpur, was produced as witnesses instead of Dr. Muhammad Saleem. These witnesses appeared as PW-1, PW-2, PW-3,-PW-4, PW-5, PW-7, PW-9, PW-10, PW17, PW-18 and PW- 19 respectively. Along with oral evidence, the documentary evidence in form of medical report, forensic expert report etc., was also produced. After conclusion of the trial, the statement of the accused under Section 342, Cr.P.C. was recorded. While replying to the allegation that why this case has been registered against him, he replied that due to{{URUD TEXT}} 5.Ch. Jahandad Khan, the learned counsel for the convict-appellant, has submitted that the prosecution has badly failed to prove the case against the convict-appellant who was falsely implicated in the case' due to enmity. He urged that there are glaring discrepancies which cannot be overlooked. The statements of prosecution witnesses are contradictory in nature which create serious doubt in the prosecution case. He submitted that it is a celebrated principle of law that a slightest doubt must go to the accused being favourite child of law. He contended that most of the prosecution witnesses from those shown in the calendar of witnesses were not produced and examined. There is a delay of about six hours in lodging the F.I.R. which is fatal for the prosecution which itself shows that the F.I.R. was registered after due deliberation. The learned counsel further submitted that the presence of eye-witnesses at the spot is doubtful and they failed to prove their presence at the relevant time. The prosecution witnesses are related with each other, therefore, their statements cannot be safely relied upon. He urged that the motive which has been set up by the prosecution has not been proved. There is no record available about the amputation of the leg.
He further argued that in the F.I.R. it has been alleged that the convict appellant fired with double barrel gun whereas it is proved from the record that no double barrel gun was recovered. The gun which was recovered is admittedly a single barrel one At the time of recording the statement of the accused under Section 342, Cr.P.C. the question also put to him about the double barrel gun which shows that the recovery of gun was fake which cannot be relied upon. The learned counsel further stressed that recovery of blood-stained earth and pieces of the bone have not been recovered as shown by the prosecution. All these facts have totally been overlooked by the Courts below while awarding the sentence to the convict-appellant. He argued that it is a case of no evidence and the convict-appellant deserves acquittal. He lastly argued that there was no repetition of fire which itself shows that there was no intention to kill Bashir Ahmad.
6. On the other hand, Ch. Muhammad Taj, the learned counsel for the complainant-respondent, has strongly controverted the arguments advanced by the learned counsel for the convict- appellant. He submitted that all the Courts below have believed the prosecution evidence but in spite of this fact the Courts have not given any plausible justification that why the have not convicted the accused-appellant under Section 307, A.P.C. He argued that in fact no conviction has been recorded against the accused and he was sentenced for the period which he has already undergone in the judicial lock-up. In fact this is not the sentence, therefore, the question of sentence already undergone does not arise. He urged that the evidence of the prosecution witnesses cannot be discarded on the ground of mere relationship until under law animosity or ill- will comes on the record against the prosecution witnesses. All the prosecution witnesses are independent, therefore, there was no occasion to falsely implicate the accused with the offence.
7. While supporting appeal filed by the complainant for enhancement of the sentence, he almost reiterated the arguments which he has advanced while in rebuttal of arguments of learned counsel for the convict-appellant. He lastly argued that this is a proved case, therefore, this is not a case of less punishment. He prayed for acceptance of the appeal while enhancing the sentence.
8. Raja Ghazanfar Ali, the learned Advocate-General, fully supported the arguments advanced by Ch. Muhammad Taj, the learned counsel for the complainant, and requested for enhancement of sentence.
9. We have heard the arguments of both the learned counsel at some length and perused the record minutely with the able assistance of both the learned counsel. The occurrence in this case took place on 16.3.1987 at 3.00 p.m., i,e,, broad day light whereas the F.I.R. was lodged at 9.30 p.m. on the same day. While adverting to the arguments of the learned counsel that there was delay of six hours which is not explained, it may be stated that in such like cases, the prime consideration is to save the life of the person who received fire-arm injury which has been done in this case. The record shows that after giving first aid to the injured, he was brought to the District Headquarter Hospital, from where the complainant informed the concerned Police Station on which the Police arrived in the hospital who recorded the statement of the complainant and in pursuance of that an F.I.R. was registered. In view of this we do not think that delay was fatal to the prosecution case.
10. Now we advert to the argument of the learned counsel for the convict-appellant that all the eye-witnesses of the case are related to each other, therefore, their statements are not reliable. It is settled law that mere relationship is no ground to discard the evidence until and unless some animosity or ill-will is brought on record. During the trial the convict-appellant failed to prove any animosity or ill-willagainst the prosecution witnesses on the basis of which he has been involved and implicated falsely. Therefore, we are not convinced with this argument advanced by the learned counsel for the convict-appellant. In this regard reliance can be placed on Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240] in which the Court has held as under:-- "An 'interested' witness is one who falsely implicates an innocent person with the commission of offence with ulterior motive. Thus, a related witness would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime. It may be observed that a party may rope innocent persons in a crime along with a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent persons."
Similarly in a case reported as Muhammad Abbas alias Abbasio v. The State [2008 SCMR 1527] it has been observed as under:-- .....Of course both these P.Ws. are related to the deceased but it is a settled proposition of law that mere relationship would not discredit a witness unless his evidence does not inspire confidence, i,e,, discrepant is belied by the medical evidence or there was any motive to falsely implicate the accused. The prosecution evidence is not reflective of these infirmities."
11. Now we advert towards the argument of learned counsel for the convict with regard to the non- availability of motive for the commission of offence. In this context it is to be borne in mind that motive is always known to the accused who commits the crime and there' B are cases like the one in hand where it is not possible to disclose the motive by the prosecution in First Information Report.
It is well settled that for determining and award adequate sentence to an accused involved in capital offence existence of motive is not necessary. The convict-appellant has failed to bring on record any personal motive or ill-will against the witnesses. Any inadequacy or weakness of motive is immaterial if the accused is found guilty from direct evidence. Reliance is C placed on a case reported as Zulfiqar Ali v. The State [2008 SCMR 796], wherein it has been observed as under: "Inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such like circumstances would be the sentence of death."
In another case reported as Anar Gul v. The State [1999 SCMR 2303], it was held as under:- .....The survey of the case-law on the subject also shows that motive is a matter of speculation and does not constitute necessary ingredients of offences, therefore, the failure of the prosecution to set up any motive ordinarily would not affect the authenticity of the prosecution case."
In the case titled Muhammad Ashraf v. The State [2001 SCMR 73], it was held as under:-- "8. The contentions that motive has not been proved and the petitioner acted under the influence of his elders, therefore, capital sentence cannot be awarded has been considered by us. As far the motive is concerned, as discussed earlier, it was not disbelieved but was not relied upon on account of lack of evidence. There can be cases where motive is hidden deep in the minds of assailants or the motive can be different from what the witnesses though it might be, in any case it cannot be considered."
Similarly in a case reported as Noor. Ahmad and others 7I. The State [1992 SCR 1] it was observed by this Court as under:-- " .....It may be stated that absence to prove motive would not affect the prosecution case in presence of ocular evidence. The proof of motive to commit an offence may be required only if prosecution case is solely based on circumstantial evidence and not otherwise."
In a case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240] in which it has been held as under:-- ' .........may also be pointed out that this is a well settled principle of law that if a case is primarily based on ocular evidence, it is not necessary to prove motive."
Therefore, the argument is baseless and has no force.
12. So far as the argument of the learned counsel for the convict-appellant that all the prosecution witnesses mentioned in the calendar of witnesses have not been produced and examined by the prosecution is concerned, it may be stated that it is prerogative of the prosecution to examine the witnesses which it deems necessary. The prosecution cannot be enforced to examine all the witnesses whose names are mentioned in the list of calendar. No adverse presumption is to be drawn in the absence of any positive evidence as has been held in case titled Mazhar Ali v. The State [2005 SCMR 523] in which it has been observed as under:-- It is the prerogative of the prosecution to examine their witnesses who are prepared to depose in Court about what they saw so as not to risk the animosity of assassins or his partisans...
Similarly in another case titled Saeed Khan and 5 others v. The State [2008 SCMR 849] it has been held as under;--, " It is prerogative of prosecution to produce evidence as may be necessary, to prove the charge and may give up the witnesses after sufficient evidence is brought on record. No inference can be drawn about the testimony of the remaining witnesses. In case the defence relies on the fact that they do not support the case of prosecution they can always be examined in defence. No adverse presumption is to be drawn in the absence of any positive evidence."
13.There is another argument of the learned counsel for the convict-appellant that in the F.I.R. it was alleged that the accused was armed with a double barrel gun whereas during investigation, a single barrel gun was recovered. During the course of arguments, a query was made to Ch. Muhammad Taj, who was appearing on behalf of the complainant, for clarification of this point. He candidly accepted that in fact single barrel gun was used and the same was recovered. We have examined the statements of prosecution witnesses. All the witnesses have categorically stated that the accused was holding single barrel gun. Even otherwise, there is consistent view of the apex Court that if the injury is proved to have been caused by a fire-arm weapon, it would be immaterial that what nature of weapon was used. In this case, the injury caused to Bashir Ahmad is a fire-arm injury, therefore, it would not be relevant that which type of fire-arm weapon was used. In this regard reliance is placed on Muhammad Ashraf and others u. The State [K.L.R. 1994 Criminal Cases 280] in which it has been held as under:-- "19. The guns of Zulfiqar and Bashir Ahmad had tallied with the crime empties recovered from the spot although the rifle alleged to have been recovered at the instance of Muhammad Ashraf appellant did not match with the empties of rifle recovered from the spot but this fact alone will not be sufficient to belie his presence at the spot because he led to the recovery of rifle on 16.11.1986 whereas the occurrence in question had taken place on 1910.1986. He might have produced some other rifle before the police after concealing or disposing of the one used in the occurrence."
Similarly in another case reported as Ellahi Bakhsh v. Rab Nawaz and another [2002 SCMR 1842], it has been observed as under:- It thus hardly matters as to whether .12-bore gun was used or a .7-MM rifle which culminated into the death of deceased. There is no denying the fact that death occurred due to fire-arm injury
14. We have given our serious thought to the statements of the eye-witnesses. We are unable to find any contradictions on the material point. All the prosecution witnesses have categorically nominated the convict-appellant while assigning special role to him. The prosecution witness, Abdul Khaliq stated as under:-- " {{URUD TEXT}} Muhammad Raqeeb, another prosecution witness stated as under:-- {{URUD TEXT}} Similarly Shabir Ahmed, prosecution witness, who is also complainant, stated as under:-- {{URUD TEXT}}
15. The statements of the prosecution witnesses were further strengthened by the medical report.
Admittedly the injury was caused to Bashir Ahmed, injured brother of the complainant, at his leg and later on his leg was amputated due to which he became a disabled person for whole life.
16. The presence of the eye-witnesses has been proved plausibly and in spite of the lengthy cross- examination, the defence failed to shatter their credibility. The statements of all the eye-witnesses are confidence inspiring and seem to be true.
17. After going through the judgments of the Courts below, it reveals that the place of occurrence, time of occurrence is not disputed and all the Courts have believed the prosecution evidence. It is also admitted position that a single accused was involved in this case and in such like cases the substitution is rare phenomena. In this regard reliance is placed on the case reported as Muhammad Iqbal v. The State [PLD 2001 SC 222] wherein it has been observed as under: "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, P:P.C. substitution of an accused who is actually involved in the commission of the crime is a rare phenomena in this country particularly in an incident in which single accused was involved by nominating him in the F.I.R. from the very beginning. So much so if the parties are inter see related to each other, therefore, due to close kinship it is very hard to accept the theory of substitution."
18. So far the discrepancies/contradictions which have been pointed out by the learned counsel for the convict-appellant are concerned, they are minor in nature. Those can be overlooked in presence of direct evidence. The ocular testimony of all the relevant circumstances was reliable and confidence inspiring. The fire shot at Bashir Ahmad, injured, is not disputed. The seat of injury is the same as mentioned in the F.I.R. On the basis of non-corroboration, the whole prosecution evidence could not be brushed aside as the corroboration is only a rule of caution and not a rule of law. If an eye-witness is found reliable and trustworthy, then there is hardly any need to look for any corroboration as laid down in a case reported as Muhammad waris v. The State [2008 SCMR 784] in which it has been held as under:-- ".......Corroboration is only rule of caution and not a rule of law and if the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration.
In view of what has been discussed above, we are of the firm view that the prosecution was successful to prove the case against the convict-appellant under Section 307, A.P.C. and relying on the prosecution evidence, there was no occasion for the Courts below not to award proper sentence. We think that the sentence awarded by the trial Court which was upheld by the District Criminal Court and the Shariat Court is inadequate. Therefore, we are inclined to accept the appeal of the complainant while enhancing the sentence to seven years to meet the ends of justice. The convict-accused, who is present is the Court, be taken into custody and sent to Central Jail, Mirpur, for serving out the remaining portion of sentence. The benefit of Section 382-B, Cr.P.C., is also extended to the convict-appellant. The appeal of the convict-appellant is hereby dismissed.