'ABDUL QADIR MENGAL, J.--- This Criminal Jail Appeal No,7 of 2013. And Murder Reference No,1 of 2013 have been directed against the judgment dated 30th January 2013, passed by learned Sessions Judge, Makran at Turbat, whereby the learned Sessions Judge, Makran at Turbat has convicted and sentenced the appellant Niaz Ahmed son of Raees Shaukat under section 302(b),. P.P.C. To death on two accounts for committing Qatl-e-Amd of deceased Rehmdil son of Faqeer, so as for committing murder of Murad Ali son of Allah Bakhsh with compensation of Rs,200,000 (Rupees Two Lac) under section 540-A, Cr.P.C. Payable to the legal heirs of the each deceased, in default of payment of compensation, the appellant/ convict has to further undergo S.I. For six (06) months.
2. Briefly stated the facts of the instant Appeal and Murder Reference No,01 of 2013 are that on 16th July, 2012, P.W.1, Faqir lodged report with Police Station City Turbat District Kech through. Murasila Exh.P/1-A, wherein he stated that he is resident of Pul Abad Thump and it was 3.30 p.m. When he was present in his house, he received a telephonic call from Abdul Rauf son of Sawali that one Niaz Ahmed son of Raees Shaukat at residential quarter of Ustad Mehmood situated at Lal Jan Colony Turbat, after making fires, has injured his son. He further told him that besides Rehmdil, Murad Ali son of Allah Bakhsh also has received firing injuries by Niaz Ahmed. Abdul Rauf further told him that the incident had taken place at about 3-30 p.m. He reached at hospital and saw his son Rehmdil who has received a bullet shot at his right side of the chest and the exit was the next side of the dead body and he was struggling for his life. Murad Ali (deceased) was also received a bullet shot at his chest. It was further alleged that the accused Niaz Ahmed son of Raees Shaukat caused bullet injuries to both of them without any rhyme or reason.
3. After registration of the F.I.R. And usual investigation, the appellant/convict. Niaz Ahmed was challaned before the court of Sessions Judge Makran at Turbat, where the charge was read over to the accused through which the accused did not plead guilty and on conclusion of the trial, the learned Sessions Judge, Makran at Turbat convicted and sentenced the appellant as has been mentioned hereinabove.
4. We have heard Mr. Abdul Kareem Yousafzai, Advocate for the pauper appellant, so as Mr. Ameer Hamza Mengal, Deputy Prosecutor-General for State.
5. Learned counsel for the pauper appellant/convict mainly contended that the evidence of the case shows that the incident has not been occurred in the way as has been narrated by the eye- witness of the incident i.e,, Abdul Rauf son of Sawali (P.W.2). According to the learned counsel, the P.W.2 in his statement clearly has mentioned that the firing was made by the appellant/convict inside of the quarter of Ustad Mehmood, whereas memo of the recovery Exh.P/5-A shows that the empties had been taken into possession 9/10 feet away from the gate of the Quarter, so being the statement of the sole ocular witness Abdul Rauf (P.W.2) being contradictory on material part is not worthy of the credit and cannot be accepted and is not admissible in the present case. Learned counsel further argued that the record shows that the empties have been sent for analysis after two months of the incident; therefore, no reliance could be made on the above piece of evidence.
Learned counsel further argued that the arrest of the appellant and recovery of the pistol further make suspective the prosecution version, as how, it is possible that after commission of the offence the culprit instead of running or fleeing away, would stay on the place of incident until police come and arrest him and recover a pistol from him after his arrest. Learned counsel further argued that the above facts shows that there was no evidence in the present case against the appellant, but the appellant/convict wrongly has been implicated in the present matter Learned counsel further argued that there is no circumstantial evidence in the present case, as such, the above facts shows that case is of no evidence. Learned counsel in support of his version relied on the following citations:--
(1) 2008 SCM R 707, "Ali Sher and others v. The State"
(2) 1969 SCM R 166 "Ch. Safdar Ali v. Malik Ikram Elahi"
(3) 2003 SCM R 1406 "Muhammad Punhal v. Abdul Wahid Abbasi and another".
(4) 1964 PLD 59 (Peshawar)
6. Mr. Ameer Hamza Mengal, Deputy Prosecutor-General appeared for State, he in rebuttal stated that the facts shows that the incident was committed at about 3.30 p.m. At the Quarter. Of Ustad Mehmood and F.I.R. Was lodged within half an hour. So, being there is no delay in lodging of F.I.R.
And furthermore, the F.I.R. Shows that the complainant's side did not try to implicate any wrong or innocent person in the instant matter. There was no justification from the side of complainant to leave the culprit and implicate an innocent person, to whom they having no enmity at all. Learned counsel further argued that the prosecution has fully established the case against the appellant and the arguments put-forth by the counsel for the appellant in view of the above mentioned facts having no weight or substance. Whereas the judgment passed by the learned Sessions Judge, Makran at Turbat being well-reasoned is quite sound, as such, the Appeal is required to be dismissed and Murder Reference made by the learned Sessions Judge, Makran at Turbat required to be confirmed.
7. On hearing both the counsel and perusing the record the case, in our view there is no justification to deviate from the findings of the learned Sessions Judge, Makran at Turbat. As the record reflects that the incident had taken place in a day time at about 3.30 p.m. At a Quarter of Ustad Mehmood and the appellant being sole culprit of double murder has been picked out by the P.Ws. i,e, the legal heirs of both the deceased, who having had no any enmity, ill will or ulterior design to implicate the appellant/convict in the instant case. Again the circumstances show that the both deceased were not relatives to each other, which at best could show that they by their common plan chose to implicate the appellant/convict in the alleged offence. Even otherwise, it is uncommon in this society where the real culprit to be left scot-free and instead of him an innocent person at the very moment to be implicated.
8. Although, the learned counsel for the appellant mainly attacked the ocular evidence i,e, sole eye-witness (P.W.2) Abdul Rauf son of Sawali by belying him on the ground that the statement of P.W.2 Abdul Rauf son of Sawali is contradictory .To the recovery memo of empties vide Exh.P/5-A, which shows that the alleged empties had been collected or recovered outside of the gate.
9. On considering the statement of eye-witness, it appears to us that he has made some improvement on this point in his statement recorded before the Court, otherwise his statement recorded under section 161, Cr.P.C. Shows that he initially had stated before the police that he along with his colleagues Rehmdil and Murad Ali was present in the quarter of Ustad Mehmood, in the meanwhile appellant/ convict Niaz Ahmed came in the quarter and then went outside, when he came back he was holding TT pistol, he told all of them to recite/read Kalma, he would kill them. He along with Murad Ali and Rehmdil came out of the quarter, Niaz Ahmed also came out and he fired to all of them and due to his firing Murad Ali and Rehmdil became injured. Whereas in his court statement, he only has mentioned that Niaz Ahmed came in the quarter and pointed out pistol towards Murad Ali and said read Kalma, he was going to kill him. He fired and injured Murad Ali, whereafter also fired towards Rehmdil and injured him and ran out of the quarter.
10. Admittedly, due to the slight improvement by the P.W., same has variant his statement to the memo of recoveries. Whereas his statement on the material point is same, there is no contradiction or discrepancy in it. Although P.W. Has faced lengthy cross, but any significant contradiction or discrepancy has not been extracted from his statement, which could throw doubt on the factual position of the case. Whereas, admittedly the maxim falsus in uno falsus in omnibus has all along been discarded by the courts of this Country and legal and principle view of the Courts is that the Court is to sift the grain from chaff, thereby the court could accept one part of the statement, which is corroboratory and reliable one, whereas neglect the other portion, which seems result of exaggeration and improvement. In this respect we have benefited our view from the case of "Chango and 6 others v. The State" 1983 PCr.LJ 1246, wherein a double bench consisting upon Hon'ble Mr. Justice Ali Nawaz Budhani and Mr. Justice. Ajmal Mian, the then Judges of High Court of Karachi, who while discussing the testimony of the witnesses had discussed this aspect in the following manner. In the context of the decision of the Hon'ble Supreme Court, 1970 PLD 13, which for the sake of connivance, is reproduced hereinbelow:-- "After having a close scrutiny of the evidence on record we have accepted a part of ocular testimony and have rejected the remaining part of the same. While we have extended the benefit of doubt to the other appellants, finding the ocular testimony discrepant, we cannot afford to apply the same rule in respect of the case of appellant Chango. We refer to the decision of PLD 1970 SC 13 and would like to quote the following passage.
"The Maxim falsus in uno falsus in omnibus' has all along been discarded by the Court of this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In this last analysis, as stated in some of the eminent judicial decisions, 'the grain has to be sifted from the chaff' in each case, in the light of its own particular circumstances."
11. The case record shows that the statement of the eye-witness has been supported or corroborated by the statements of the complainant Faqeer (P.W.1), so as Barkat Ali (P.W.4) the brother of deceased Ali Murad, who have got the information soon after the commission from Abdul Rauf (P. W .2) and reached at hospital. According to Barkat Ali (P.W.4) that when he reached hospital, he saw his brother Murad Ali lying in critical condition. He told him that Niaz Ahmed (appellant) had injured him. He later on succumbed to his injury. This witness has faced lengthy cross, but nothing beneficial has been extracted from his statement. The medical report is also corroboratory to the statement of complainant (P.W.1) and supports the prosecution version, whereas the recovery of empties out of the gate of the quarter of Ustad Mehmood also supports the version. The empties were lying 9/10 feet away in front of gate of the quarter of Ustad Mehmood and this fact also fully has been established by P.W.5 Abdul Ghani son of Peer Muhammad. This witness also has supported the recovery of the TT pistol and according to him when they went at the place of incident, from where the two empties of TT pistol were recovered through Exh. P/5-A, then appellant/convict Niaz Ahmed was also arrested from the same place and during of his search a TT pistol which was lying in a bandolier, fasten at the waist of the appellant/convict was taken into possession along with six rounds. There is nothing which could make the evidence of P.W. Unreliable or worthy of no credit.
12. The I.O. Also has fully corroborated the prosecution version and thoroughly highlighted the facts of the case and his statement seems consonance, corroboratory and convincing one. As regards the question of sending empties delayedly, in this connection it may be pointed out that each criminal case rest on its own footing and one ruling or authority on same point in some case do not applicable on the facts of the other case. Whereas although the empties had been sent after two months delay for analysis, however, only this reason cannot be ground to disbelieve it. As admittedly perusal of the evidence of the I.O. Muhammad Murad son of Khuda Bakhsh (P.W.6) shows that no question in respect of sending material delayedly has been put to him, which could show the reason for sending the empties delayedly, so as the statement of P.W. Further shows that no question from the defence or appellant side has been put to the I.O. That he has replaced the empties or planted forge empties by getting a report in favour of the prosecution.
13. Again this objection of the learned counsel that stay of the appellant on the same place also create doubt in the prosecution case, however, it is common phenomena that different accused or culprits after commission of the offence do act differently, some accused try to flee from the place of incident and some after commission of offence choose to face the circumstances. Some people try to commit offence concealing their whereabouts that no one to see or locate them and some culprits do commit offence in daylight in presence of all the people without concealing their whereabouts. Thus commission of the murder by the appellant in daylight shows that he had no hesitation or fear to commit the murder by concealing his identity or whereabouts, therefore, his arrest from the place of incident cannot be doubted.
14. Thus, in the above backgrounds when adverting to the judgment of the learned Sessions Judge, Makran at Turbat, we are of the view that the learned Sessions Judge, Makran at Turbat has properly dealt with each and every piece of evidence and has come to a right conclusion. On contrary, we are observed that nothing has brought from the side of the appellant/ convict to discredit or given any dent to the prosecution version. He simply has denied his involvement, but even has failed to examine himself on oath being witness in support of his version. Whereas, the facts and circumstances show that there was no doubt in the identity of the culprit as incident was taken place in front of the eyewitnesses at daylight. Although the motive behind the murder has not been brought on record for committing murders, however, admittedly many grave murders committed without any just and reasonable cause, therefore, there appears no material in the instant case for mitigation. As the appellant/convict has taken life of two young persons, aged about 25 and 30 years, even otherwise, motive is only a factor, which helps in connecting the accused with the accusation. Absence of motive cannot be used as mitigating circumstances in determining sentence to be imposed. In this respect we have benefiting our view from the case of "Muhammad Nawaz v. The State" 2002 YLR 1857 [Lahore]. Therefore, in our view there is no cause or reason to deviate from the normal sentence of death as has been awarded by the learned trial Court i,e, Sessions Judge, Makran at Turbat.
' Thus, with the above observations, the Murder Reference No,1 of 2013 sent by learned Sessions Judge, Makran at Turbat is answered in affirmative. In result, the instant. Criminal Jail. Appeal No,7 of 2013 also has no substance, as such, the same is also dismissed.