MUHAMMAD DAUD KHAN J.- This Jail Criminal Appeal bearing No. 117-B of 2011 is directed against the judgment dated 24/5/2011 rendered by the learned Judge, Anti-Terrorism Court Bannu, whereby the appellant, namely, Riaz Khan alias Lol, son of Mirdad Khan, has been convicted in case FIR No.81 dated 13/6/2002 of police station Kakki, district Bannu, registered under sections 302/ 449/ 324/ 148/ 149 PPC, 7-ATA and sentenced as under:-
(i) Under section 302 PPC read with Section 7 ATA to undergo life imprisonment on three counts and to 'ay fine of Rs. 1,50,000/- on each count payable to the legal heirs of the three deceased, in default thereto to further suffer two years simple imprisonment.
(ii)Under section 324 PPC read with Section 7 ATA to undergo four years R1 and to pay fine of Rs.
50,000/- payable to the complainant and PW Muhammad Ishaq or in default to further suffer one year simple imprisonment.
(iii) Under sections 148/149 PPC to undergo one year RI and
(iv) Under sections 449/149 PPC to undergo four years RI and to pay fine of Rs. 2,000/-. Benefit under section 382-11 Cr.P.0 however, been extended to the convict-appellant.
Similarly, Fazl-e-Subhan, complainant of the case, is also aggrieved from the aforesaid judgment of the learned trial Judge and has questioned the same through Criminal Appeal No. 118-B of 2011, praying for enhancement of the sentences of life imprisonment to that of normal penalty of death (on three counts) with. adequate increase in the payments of fines and compensation as well.
Since both these appeals are the outcome of one and the same judgment of the learned trial court, therefore, we propose to dispose of both these appeals through this single judgment.
2 The prosecution story as gleaned from the First Inlormation Report (kx.1)A) lodged by the complainant Fazl-e-Subhan on 13/6/2002 at 0500 hours is that at about 5/6 months ago, his niece, namely, Mst.Pari Naz Bibi, daughter of Sher Gul, was married to Mir Sahib Khan, son of Amal Khan, caste Wazir, resident of Datta Khel Mir Ali, North Waziristan Agency and being unhappy with her hushand she was living in the house of her parents at Bannu for the last fifteen days. On the eventful night at 0300 hours, Mir Sahib Khan, Sabibullth Khan, sons of Amal Jan, Sardaraz Khan, Dilawar Khan and Riaz Khan, all duly armed with Kalashnikovs, entered the house of complainant.
Accused Mir Sahib Khan awoken the complainant and his brother Sher Gul and at that time bulb of the courtyard of the house was on. He asked him and his brother Sher Gul Khan as to why Pail Naz was not being given to the husband to whom they replied that she (Mst. Pari Naz Bibi) is not, happy with him due to which an altercation took place. Meanwhile all inmates of the house woke up and simultaneQusly all accused fired at them with the intention to commit their Qatl-e-Amd, as a result of which, his brother Sher Gul, Mst.Bilawar Jana, wife of Sher Gul and his daughter Mst. Pari Naz Bibi were hit, sustained injuries and died at the spot, while he (the complainant) and his nephew Ishaqa Khan luckily escaped unhurt. The complainant thus charged all the accused named above for committing Qatl-e-Amd of the three deceased and attempting at the lives of 'complainant': and PW !shag by making ineffective firing, vide ibid FIR..
Needless to mention here that initially all the accused charged in the case after commission of offence went into hiding and remained fugitive from law for a considerable long and unexplained period but subsequently accused Sardaraz Khan was arrested on 22/5/2004, tried by the learned Anti-Terrorism Court Bannu,, and on conclusion thereof, he was convicted and awarded the same sentence as punishments as awarded to the present appellant Riaz Khan vide judgment dated 26/6/2004. His appeal before this Court as well as before the august Supreme Court were dismissed and the conviction attained finality.
3 The present accused/ convict / appellant was arrested on 19.07.2007. On completion investigation supplementary challan was submitted and he case was sent for trial before the learned, Anti Terrorism Court Bannu, where he was summoned and formally charge--sheeted but he did not plead guilty to the charges, professed innocence, pleaded false implication and claimed trial.
4. In order to prove its case, the prosecution produced and examined as many as thirteen witnesses against the appellant whereafter his statement under section 340(2) Cr.P.0 was recorded on 19/5/2011, wherein he wished to be examined on oath and opted to produce evidence in defence.
5. On evaluating the evidence brought on record and considering the arguments of learned counsel for the parties addressed at the bar, the learned trial Judge found the accused/appellant guilty of the offence charged with and thus on conviction sentenced him as mentioned above, hence these two appeals.
6. Learned counsel for the convict appellant emphatically contended that factual and legal aspects of the case have not been appreciated by the learned trial Court in its true perspective which resulted in serious miscarriage of justice. He further argued that the prosecution has miserably failed to substantiate the factum of accusation of the convict/appellant by ' not producing worthy of credence evidence which aspect of the matter went unnoticed causingt serious prejudice against the appellant. It is further contended that in view of the locale of injuries oil the persons of the three deceased, the guilt of the appellant in committing the crime is not substantiated through medical evidence. Developing his arguments, learned counsel for the appellant made reference to the murasila (Ex.PA/1), where the time of report has been given as 0500 hours and the time of examination of the deceased in the Civil Hospital Bannu is given as 0830 hours. As urged by the learned defence counsel, there is thus difference of three hours and thirty minutes between the time of report and examination of the deceased which makes the prosecution version highly doubtful. Disputing the conviction and sentence recorded by the learned trial court, learned counsel for the appellant made reference to not sending the crime empties to the Ballistic Expert to ascertain as to whether these have been fired from one fire arm or moro which cask scrium (IUIII)t ()11111(.. vcri()Ii ()I' 11w 1)1.(r;ecilli()11, as according to him, the prosecution has no doubt charged five persons for commission of the offence, but in fact it is the job of one person. Lastly learned counsel argued that being brother of the deceased Gul Sher, the eye account furnished by PW Fazl-e-Subhan has got no legal sanctity. In support of his arguments, learned counsel for the appellant placed reliance on case law titled Muhammad Avub.. Vs.. The State (PLD 1964 (W.P) Peshawar 288), Sardar Khan and 3 others...Vs...The State (1998 SCM R 1823), Shah Nawaz... Vs.. Lal Khan and 2 others (1972 SCM R 286) and Rohtas Khall..Vs...The State (2010 SCM R 566).
As against that, learned counsel for the complainant assisted by learned Additional Advocate General representing the State argued that the learned trial court has fully appreciated the evidence available on record and has rightly held the convict/appellant guilty of the charge of murder of the three deceased on three counts. They went on to say that in view of promptly lodged FIR which , further lends support from the testimony of the PWs Fazle Subhan and Ishaq, the impugned judgment sans quantum of sentence is unwarranted. They further added that by awarding lesser punishment to the appellant, the learned trial cowl has landed into the fields of error.
8. We have considered the submissions of learned counsel for the parties and gone through the record of the case.
9. It appears from the FIR (Ex.PA) that in this case the occurrence took place on 13-06-2002 at 0300 hours, whereas the report has been lodged on the same day at 0500 hours, i.e. after two hours of the occurrence. Though learned counsel for the appellant has objected that the matter was reported to the police after a considerable delay as the distance between the place of occurrence and police station as per record is not too much, but since in this brutal incident, father, mother and their daughter had lost their precious lives at the hands of desperate and dangerous criminals in the dark hours of night sand before the light of morning to come', none in such like areas due' to fear dare to come out from their hot ls coupled with non-availability of transport facilities for taking the dead bodies to the mortuary or police station, therefore, delay in such like circumstances, if any, is of little importance and would not be helpful to the defence. Moreover, the august Supreme Court in a case titled Allah Wadahey and another..Vs..The State (2001 SCM R 25) has ruled that verdict given in a criminal case generally must be confined to the facts of the reported case and cannot be universally applied to all cases. The facts and circumstances of the cases referred to earlier by the learned counsel for the appellant on the element of delay are different from the facts of the present case.
10. It appears from the record that in this case the Investigating Officer while inspecting the place of wardae has recovered five empties of 7.62 bore from the place of the appellant shown in the site plan which has not been sent for examination of the Ballistic Expert so as to ascertain as to whether it has been fired from one fire jrm or more. According to the learned counsel for the appellant, the job in this case is that of one person and had the empties been sent to FSL, the prosecution version would have been belied by the report of Expert.
1 1 . In a case titled Noor Muhammad..Vs..The State and another (2005 SCM R 1958), it was observed by their Lordships that the opinion Cormed by the Ballistic Expert by no means is sacrosanct and the possibility in opining that the empties/bullets secured from the scene of incident were fired from seven different arms cannot be ruled out. No hard and fast rule can be laid down as regards the weight to be given to the Expert report. In a case which otherwise stand proved against the accused by reliable, truthful and confidence inspiring evidence, then the report of Expert loses its weight. Reliance is also placed on a case titled Muhammad Hanif..Vs..The State (PLD 1993 Supreme Court- 895) where it was observed by their: Lordships that direct evidence which was definite and trustworthy, the confirmatory evidence was not of much significance and cannot, in any way, outweigh the direct evidence, as in the instant case, where the ocular account furnished by PW Fazle Subhan. Wisdom is derived from a case titled Liaqat..Vs...The State (2006 SCM R 33), where the Honourable Surpeme Court has ruled as under:- "Mere report of Ballistic Expert regarding of crime empties having been fired from the same fire arm was not sufficient to discard the evidence of natural and independent witness having no enmity with the accused".
12. Learned counsel for the convict-appellant during the course of his arguments urged that since PW Fazle Subhan who has furnished ocular account in respect of the occurrence is brother of the deceased Gul Sher, therefore, in view of the capital charge which the convict/appellant is facing, he should not be relied upon.
13. By now there is no cavil with the proposition that if an interested witness claiming to be an eye witness charges a person with the commission of an offence, the first thing which the court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly, whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corboration as substitution is a thing of rare occurence and cannot be assumed readily. and Ile who asserts substitution must lay foundation for it. But if the court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by.. the Courts before relying on it for conviction.
The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case.
Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice.
Rel: Niaz..Vs..The State (PLD 1960 Supreme (Pak) 387 anal N azi r anti others..Vs..The State (PLD 1962 Supreme Court 269).
14. Appearing as PW-10, Fazl-e-Subhan complainant of the case has stated in support of his stance as narrated in his initial report Ex.PA/1. He was subjected to lengthy and taxing cross-examination by the learned counsel for the convict/appellant but nothing could be extracted from his mouth which could diminish the probative worth of his testimony. Moreover, the statement of the witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of an interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances. In this regard, reference can be made to the cases of Khadim Hussain..Vs..State (2010 SCM R 1090), Ashfaci Ahmad..Vs..State (2007 SCM R 641), Shoukat Ali..Vs. The State (PLD 2007 Supreme Court- 93) and Muhammad Mansha..Vs..The State (2001 SCM R 199). The Honourable Supreme Court in the case titled Igbal alias Bala..Vs..The State (1994 SCM12 1) has held that mere the friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. Reference can also be made to the case of Muhammad Ehsan..Vs..State (2006 SCM R 1857) wherein while considering the plea raised by accused that evidence of widow of deceased could not be relied upon because she was interested witness being related to deceased, it was held that she was widow of deceased would not by itself sufficient to held that she was interested witness as she had no enmity with the accused and even if deceased had enmity with accused it would not have any serious affect upon the credibility and reliability of the testimony of widow.
Deriving wisdom from the above precedents of Honourable Supreme Court, there appears to be no reason, whatsoever, for Fazl-e-Subhan PW-10 to substitute the real culprits with that of the appellant in absence of any serious enmity which otherwise is a rare phenomenon.
15. In this case the occurrence has taken place on 13-6-2002 whereas the convict/appellant has been arrested on 19-7-2007 after about five years of the occurrence. When put to a question under section 342 Cr.PC as to how he would explain his abscondence, the convict-appellant replied that he was away from Bannu to Peshawar in connection with some personal affairs and being unaware of his charge in the occurrence did not abscond. The answer of the convict-appellant, in view of his long standing abscondence which as stated earlier is about five years, is barking towards moon.
16. Admittedly and as urged by counsel for the appellant, abscondence of an accused can never remedy the defect in the prosecution case, that abscondence of accused by itself has no value in the absence of any other evidence, that abscondance can be used as corroborative piece of evidence which cannot be read in isolation but has to be read alongwith substantive piece of evidence. Reliance is placed by learned counsel for the appellant on the case law titled Rohtas Khan..Vs..The State (2010 SCM R 566).
17. There is no two opinion about the proposition that abscondance of the accused by itself is not sufficient to prove his guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad..Vs..Qasim Ali (1992 SCM R 814), Pir Badshah..Vs..The State (1985 SCM R 2070) and Amir Gul..Vs..The State (1981 SCM R 182), it was observed by their Lordships that conviction on abscondance alone cannot be sustained but so far as the case under consideration is concerned, here the position is altogether different as the version of prosecution is duly corroborated by medical evidence, recoveries affected from the place of convict/appellant, motive behind the occurrence and other attending circumstances of the case and all these facts, when taken together, lends support from the ocular account of PW Fazl-e-Subhan. Rel: Mst. Roohaida..Vs..Khan Bahadur and Another (1992 *SCMR 1036), Oaiser Khan and others..Vs..The State and others (2009 SCMR 471 and Mir Afzal Khan..Vs..The State (2011 SCM R 171).
18. In view of the above, we are clear in mind that guilt of the appellant has been proved through the confidence inspiring testimony of PW Fazle Subhan, recoveries made by the Investigating Officer from the spot, medical evidence and long standing abscondence of the appellant and that he has rightly been convicted.
19. Now the question arises for the consideration or this court is as to what was the quantum of sentence and whether in the given circumstances of the case, the sentence of imprisonment for life (on three counts) would meet the ends of justice? In this respect, it would be enough .to say that since on the same set of evidence, Sardaraz Khan, co-accused of the present appellant was similarly convicted and sentenced by the learned trial Judge and his conviction and sentences were maintained upto the Apex Court as referred to above, as is the case of the appellant/convict Riaz Khan, therefore, considering the same as mitigating circumstances of the case, we are of the view that the sentences awarded to the convict-appellant by the learned trial court would meet tsa the ends of justices 20. As a corollary to what is discussed above, we find no merit in either of the two appeals which are accordingly dismissed.