' MUHAMMAD HASHIM KHAN KAKAR, J.---This judgment will dispose of Criminal Appeal No,18 of 2011 and Murder Reference No,4 of 2011, both arising out of judgment dated 27th January, 2011, passed by the Additional Sessions Judge, Lasbella at Hub (the "trial Court"), whereby appellant Saleh Muhammad alias Hashim Marri son of Shah Murad was convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) to suffer death, subject to confirmation of this Court.
2. 'Complainant Qaim Khan son of Jam Khan (P. W.1), in his. Farde-Bayan (Exh.P/1-A), addressed to Station House Officer (SHO), Police Station., Hub, alleged that on 14th April, 2010, he, along with Wazir Khan, Pir Bakhsh, Nazar Hussain and Mir Muhammad, was present in the fruit shop/handcart of his cousin Ahmed Khan son of Dad Muhammad, when at about 8-45 p.m., Saleh Muhammad alias Hashim Marri (the appellant) came there on a motorcycle, purchased one dozen bananas, gave Rs,50 to his cousin Ahmed Khan and an amount of Rs,20 was returned to him. After a short while, the appellant again demanded for return of Rs,20, at which Ahmed Khan told him that he had already returned the said amount. On that, harsh words were exchanged between them, at which Ahmed Khan once again paid him Rs,20. The appellant, while leaving the place, advanced threats of dire consequences and told that he will teach him the lesson. The complainant further alleged that after about 20 to 25 minutes, appellant Saleh Muhammad, along with his companions Baloch Khan and Ali Nawaz, came there on motorcycles. Appellant Saleh Muhammad took out a pistol, whereas his companions were also armed with pistols and they started firing, due to which Ahmed Khan, Wazir Ali, Pir Bakhsh, Nazeer and Mir Muhammad sustained bullet injuries, out of whom Ahmed Khan and Wazir Ali, who happened to be the cousin and brother of the complainant respectively, succumbed to the injuries on the spot, whereas Pir Bakhsh, Nazeer and Mir Muhammad sustained injuries. Consequently, a case vide F.I.R. No,69 of .2010, under sections 302, 324 read with section 34 of the P.P.C. Was registered at Hub City Police Station District Lasbella.
3. The investigation of the case was carried out by P.W.7 Talib Hussain, IP, who, after registration of F.I.R. (Exh.P/7-A), went to Civil Hospital, Hub, where he found the dead bodies of Wazir Ali and Ahmed as well as injured Pir Bakhsh and Nazeer Hussain in emergency ward.
' He took into possession the dead bodies of the deceased through recovery memo, examined it and prepared memos (Exh. P/7-B and C). He also prepared inquest reports (Exh.P/7-D & E) of the deceased, handed over it to doctor concerned for postmortem examination, however, on the written application of the complainant party, it were released to its heirs without conducting postmortem examination vide receipts (Exh.P/7-F and G). He recorded the statements of prosecution witnesses and, thereafter, he went to the place of occurrence, where, on the pointation of the complainant, he inspected the site and prepared site sketch (Exh.P/7-H). On the spot, ASI Attaullah handed over him a TT pistol, along with a magazine and three live cartridges, and told that the same were recovered from the possession, of appellant Saleh Muhammad, which were taken into possession and sealed into a parcel. Since appellant. Saleh Muhammad was also injured, therefore, he was .Shifted to Civil Hospital, Hub, wherefrom he was shifted to Karachi for further treatment and after arrival from Karachi, further investigation was carried out against him.
He registered a case under the Arms Ordinance against appellant Saleh Muhammad; took into possession blood-stained clothes of the deceased and injured, which were produced by their relatives and sealed into parcels. He obtained death certificates as well as Medico Legal Certificates of the deceased and injured persons. During course of the investigation, accused Saleh Muhammad made disclosure about commission of the offence and also nominated his accomplices, at which a disclosure memo was prepared. After completion of the investigation, the appellant was remanded to judicial custody, whereas the blood-stained articles were sent to Forensic Science Laboratory (FSL), Karachi for analysis and incomplete challan (Exh.P/7-I) was prepared.' On receiving report of Chemical Examiner (Exh.P/7-J), supplementary challan (Exh.P/7- K) was prepared.
4. On the stated allegations,' a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced seven (7) witnesses. P.W.1 Qaim Khan is complainant of the case, who placed on record his Fard-e-Bayan (Exh.P/1-A). P.W.2. Muhammad Naeem, HC, is witness to the recovery memos (Exhs.P/2-A, B, C and D) in respect of blood-stained clothes of the deceased and injured persons.
P.W.3 Attaullah, ASI, and P.W.4 Ali Akbar, SI, are witnesses to the recovery memo (Exh. P/3-A) regarding TT pistol, a magazine and three live cartridges. P.W.5 Sikandar Ali, SI, is witness to the disclosure memo (Exh.P/5-A) of the accused. P.W.6 Dr. Zulfiqar Ali Sajjid, Medical Officer, Civil Hospital, Hub, examined the dead bodies of the deceased as well injured persons and issued death certificates (Exhs.P/6-A and B) and Medico Legal Certificates (Exhs. P/6-C and D). P.W.7 Talib Hussain, IP, is the Investigating Officer of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence.
He also recorded his statement on oath under section 340(2) of the Cr.P.C. And produced D.W.1 Muhammad Bakhsh in his defence. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the appellant, as mentioned hereinbefore, hence this appeal and murder reference.
6. Mr. Muhammad Qahir Shah, learned counsel for the appellant vehemently argued that the conviction of the appellant is based upon the solitary statement of complainant Qaim Khan (P.W.1), who is an interested and related witness and no other ocular account was furnished by the prosecution to support the solitary statement of P.W.1. He further contended that the injured witnesses, namely, Pir Bakhsh, Nazeer and Mir Muhammad did not appear to support the prosecution's case. He also submitted that neither any empty was secured from the crime scene, nor any independent witness of the recovery of weapon of offence from possession of the appellant has been produced. While concluding his arguments, learned counsel stated that the motive behind the incident was stated to be money dispute, but no detail of such dispute has been provided before the trial Court to establish the same.
7. As against that, Mr. Abdul Ghani Mashwani, learned counsel for the complainant, has strongly opposed this appeal and has contended that it is a case of brutal murder and the appellant is named in the promptly lodged F.I.R. With a specific role of causing firearm injuries to deceased/persons Ahmed Khan and Wazir Ali as well as injured persons Pir Bakhsh, Nazeer and Mir Muhammad. He further stated that the appellant was arrested at the spot and the crime weapon was also recovered from his possession and he is responsible for the death of two innocent persons and. Causing firearm injuries to three persons on a petty matter.
8. We have carefully examined the above-mentioned contentions in the light of relevant provisions of law and record of the case. After having gone through entire record, we are of the considered view that the prosecution has established the guilt of the appellant to the hilt by producing cogent and concrete evidence. In the instant case, the occurrence took place at about 8-45 p.m. And F.I.R.
(Exh.P/7-A) was lodged by complainant Qaim Khan (P.W.1) at about 9-30 p.m. The distance of Hub Police Station from the place of occurrence is approximately 2-1/2 kilometers. Thus, it can be said that it was lodged with reasonable promptitude, which excludes the possibility of deliberation and consultation.
9. The complainant has given a detailed account of events leading to the murder of deceased Ahmed Khan and Wazir Ali as well as firearm injuries to Nazeer, Pir Bakhsh and Mir Muhammad.
According to the complainant, qn 14th April, 2010, he, along with Wazir Ali, Pir Bakhsh, Nazeer Hussain and Mir Muhammad, was present in the fruit shop/handcart of his cousin Ahmed Khan, when appellant Saleh Muhammad came there and, after purchasing one dozen bananas and exchange of harsh words, he left the place and advanced threats of dire consequences. As per the complainant, after 20 to 25 minutes, appellant Saleh Muhammad, along with his companions; viz, Baloch Khan and Ali Nawaz, came there on motorcycles and started firing, due to which Ahmed Khan, Wazir Ali, Pir Bakhsh, Nazeer and Mir Muhammad sustained firearm injuries, out of whom Ahmed Khan and Wazir Ali succumbed to the injuries on the spot. We are not persuaded to agree with the prime contention of Mr. Muhammad Qahir Shah, that on the basis of solitary evidence of related witness, no conviction could have been awarded in the absence of any corroboratory material. By now it is a settled proposition of law that in criminal cases, it is the quality and not quantity of evidence, which is to be considered, while deciding a case and if the evidence of a sole witness is confidence-inspiring and trustworthy, then the same can safely be relied upon for conviction. The credence of statement of solitary witness has already been examined by the .Hon'ble apex Court in number of cases. In this context, reference can be made to a case of Riaz Hussain v. The State, 2001 SCM R 177, wherein it has been held as under:-- "There is no force in the contention' that conviction could not be awarded on the basis of solitary statement of Mst. Manzooran as it is quality of evidence and not quantity which is to be considered. The conviction can be based on the evidence of a solitary witness. In this regard we are fortified by the dictum laid down in PLD 1980 SC 225; 1971 SCMR 659; 1969 SCMR 76; 1971 SCMR 273 and 1995 SCMR 1979. As mentioned hereinabove the statement of Mst. Manzooran finds corroboration from medical evidence, motive surrounding circumstances and absconsion irrespective of her inter se relationship with deceased."
10. We are conscious of the fact that complainant Qaim Khan is real brother of deceased Wazir Ali and first cousin of deceased Ahmed Khan, however, mere relationship of witness with deceased persons is not sufficient to discard his evidence outrightly. If the presence of a related witness at the time of occurrence is natural and his evidence is straightforward and confidence-inspiring then the same can be safely c relied upon to award capital punishment. In the instant case, the presence of the complainant at the shop of his brother and cousin at the time of occurrence was quite natural. He stood the test of cross-examination, but his evidence Could not be shattered, therefore, his testimony cannot be rejected, merely on the ground of his relationship with the deceased persons. The complainant, as stated above, is the real brother of deceased Wazi Ali and cousin of deceased Ahmed Khan, thus, it is not possible that he will falsely implicate the appellant and would let off the real culprits.
11. The ocular account, furnished by P.W.1, is fully corroborated by the medical evidence insofar as the time, locale and dimension of the injuries received by deceased Ahmed Khan and Wazir Ali. The nature of injuries received by deceased persons squarely reflects that these were the injuries, which could have been caused by a pistol shots. The ocular account also stands corroborated by the recovery of crime weapon i.e, pistol from possession of the appellant immediately after the occurrence, which was sent to the Examiners of the Fire-arms Section Forensic Division Sindh, Karachi and the report (Exh.P/7-J) revealed that the same was in working order and fires had been made through it.
12. In the instant case, as already observed, the statement of complainant Qaim Ali is not only corroborated by the medical evidence, but also by the alleged motive. The motive behind the occurrence is mentioned in F.I.R. (Exh.P/7-A), which is an exchange of harsh words between the appellant and deceased Ahmed Khan prior to the incident. The same motive has-been deposed by the complainant during trial in his deposition before the Court recorded on 17th October, 2010, which prompted the appellant to commit the murder of deceased Ahmed Khan and Wazir Ali. In this context, reference can be given to a case of Gulli v. The State, 1999 PCr.LJ 1179 Karachi, the relevant portion is as under:-- "Where motive was specifically pleaded in the F.I.R. And was deposed at trial by the complainant against an accused person and corroborated by another prosecution witness, the same was proved against the accused person."
' Even otherwise, the contention of learned counsel for the appellant that since the motive has not been proved or the same is weak and, therefore, the benefit of this infirmity should be given to the appellant is also without any substance. The lack of motive or its weakness is never fatal for the prosecution if the case otherwise stands proved through direct G evidence with regard to the occurrence. In this regard, reference can be made to a case of Imtiaz Ahmed v. The State, 2001 SCM R 1334, wherein the Hon'ble Supreme Court has held as under:--- "It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case but must rest on the examination of entire evidence" in view of principles in Woolmingtin's case 1935 AC 462. Reference may be made to Talib Hussain v. State (1995 SCMR 1776), so also even in case of weak motive when there has been otherwise strong and reliable evidence, motive would not come in the way of the case of prosecution. Reference may be made to =State v. Sobharo 1993 SCMR 585."
13. The attempt made by the defence counsel to show that no empties were secured from the place of alleged occurrence, which adversely affects the prosecution's case, seems to be futile for the reasons that the non-securing of empties by the Investigating Officer cannot destroy the case of the prosecution, as per site plan (Exh.P/7-H), the occurrence has taken place on a highly busy road i.e, Saakran road H and the possibility cannot be ruled out that the empties were displaced by the fast moving vehicles. Even otherwise, the recovery of weapon of offence or empties by itself would not be fatal for the prosecution in the facts and circumstances of the present case. It is a settled principle of law that the recovery of weapon of offence or empties is not the mandatory requirement of law, but it is a circumstantial piece of evidence, which tends to corroborate the other pieces of evidence i.e, ocular account, motive, medical evidence and any other circumstance which may deem relevant.
14. Our attention was also drawn to the site plan (Exh.P/7-H) prepared by Investigating Officer, wherein the location or position of P.W.1 Qaim Khan (complainant) was not shown. It is not denied that the site plans are prepared only to explain or to appreciate the ocular evidence on record in the case. Site plan by itself is not a substantive piece of evidence, nor can it take away the probative force of reliable J eye-witness, whose statement appears to be truthful. Even otherwise, the Investigating Officer in his statement recorded before the trial Court has categorically stated that the site plan (Exh.P/7-H) was prepared on the pointation of the complainant (P.W.1). By holding this view, we are fortified from a case of Ali Sher v. The State, PLD 1980 Supreme Court 317, wherein it was held as under:- "The mere omission of the position of the prosecution witnesses in the site plan cannot per se lead to an irresistible inference that the witnesses were not present, when it is found that the presence of the witnesses at the time of the incident and at the place indicated would be natural in the circumstances. In the present case, the occurrence had taken place in the lane in front of the house of Nawab, the presence of relations of the deceased was only natural, and even if the Investigation Officer has omitted to indicate their position in the site plan, it cannot lead to an inference that they were not present."
15. So far as the request of learned counsel for the appellant for drawing an adverse presumption against the prosecution under section 129(g) of the Qanun-e-Shahadat Order, 1984 is concerned, the same is untenable for the simple reason that the order sheets dated 17th June, 2010, 26th June, 2010 and 8th July, 2010 reflect that the said witnesses appeared before the trial Court, but could not be examined for one or the other reasons. It has come on the record that the complainant belongs to a poor and labourer class and is resident of Sindh Province. In our society, it is very difficult for such poor people to combat with the local influential persons, but, nevertheless, the credit goes to complainant Qaim Khan, who stuck to his guns and fully implicated the appellant in his statement and did not succumb to any pressure. Even otherwise, the mere fact that nobody from the locality had come forward to depose against the appellant would not be material, keeping in view the social condition prevalent in our society, where strangers avoid to poke their nose in the bloody affairs of other people due to subsequent consequences.
16. After deep reappraisal of evidence, we are convinced that the prosecution has established its case against appellant Saleh Muhammad alias Hashim Marri beyond any shadow of doubt and find no reason whatsoever to interfere in the conclusions arrived at by the trial Court in conviction recorded against him or the sentence awarded. Thus, the death sentence of appellant Saleh Muhammad is hereby confirmed.
' Resultantly, Criminal Appeal No,18 of 2011 filed by the appellant is dismissed having no force and Murder Reference No,4 of 2011 is answered in affirmative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.