Assadullah Khan Chamkani, J.--Appellant Amjad Ali, was tried by learned Judge Anti-Terrorism Court, Mardan, for committing murder of Wilayat Shah, Sadiq Ali, and Ghufran Ullah deceased, as well as attempting at the lives of Maqsood Ali and Abidin, causing them fire-arm injuries, and on conclusion of trial, vide impugned judgment dated 12.09.2013, he was convicted and sentenced in the following manner:--
1. Under Section 302(b)/34, PPC read with S.7 (a) Anti Terrorism Act: To undergo life imprisonment and to pay Rs,3,00,000/-. To LRs of the deceased, as compensation in terms of Section 544-A, Cr.P.C.
2. Under Section 324/34, PPC read with S.7 of the Anti Terrorism Act: To undergo 10 years R.I.
3. Under Section 337-F (iii) & (v)/34, PPC: To undergo 03 years R.I. And to pay Rs, 10,000/- to each injured as "Daman".
' All the sentences have been directed to run concurrently and benefit of S. 382-B, Cr.P.C. Has been extended him.
2. Being discontented with his conviction and sentence, Amjad Ali convict, has filed instant appeal, seeking reversal of the impugned judgment, while the State through Advocate-General Khyber Pakhtunkhwa, Peshawar, has filed connected Criminal Appeal No, 591-P/2013, titled, The State vs. Amjad Ali" seeking enhancement of sentence of the convict from life imprisonment to normal penalty of death and for the same purpose complainant Maqsood Ali, has preferred Cr.R. No, 104- P/2013.
3. As all the three, are the outcome of same judgment of the learned trial Court dated 12.09.2013, therefore, we are going to dispose of these through this common/single judgment.
4. Prosecution case as unfolded in First Information Report is that, on 16.11.2007 at 0820 hours complainant. Maqsood Ali (PW.11), reported to Noor Waris Shah S.I. (PW.15), in injured condition, in Civil hospital Kalu Khan, District Swabi, that on the fateful day he alongwith his brothers Sadiq Ali and Usman Akbar (PW.12), accompanied their father Wilayat Shah to see him off at Peshawar, as he was proceeding to Saudi Arabia to perform Hajj (pilgrimage); that at 08.00 a.m, when they reached Swabi road near "Kalu Khan main stop Intizargha Swabi", in the meanwhile, Amjad Ali (appellant-convict herein) alongwith his brother Zulfqar Ali Bhutto (absconding co-accused), duly armed with fire-arms, came there and opened fire at them with intention to do away with them and resultantly, his father Wilayat Shah, brother Sadiq Ali and a passerby, namely, Ghufran Ullah, were hit and died on the spot; while he and one Abid Din a passerby, sustained fire-arm injuries.
After the occurrence, the accused decamped from the crime spot. A land dispute is stated to be motive behind the crime. In addition to complainant, the incident is stated to have been witnessed by PWs Usman Akbar, Imran and Farukh Shehzad. Report of the complainant was reduced into writing in the shape of murasila Exh.PA/1 by Noor Waris Khan SI (PW.15), on the basis of which, FIR Exh.PA bearing No, 1401, dated 16.11.2007, was registered under Sections 302/324/34, PPC read with S. 7 ATA, at Police Station Kalu Khan, District Swabi. Noor Waris Khan SI PW.15, prepared injury sheets of the injured and referred them for medical treatment. Similarly, he after preparing injury sheets and inquest reports of the deceased named above shifted their dead bodies to mortuary for post- mortem examination.
5. Dr. Bakht Jam al (PW.13), examined injured complainant Maqsood Ali on the same day at 8.35 a.m. And found a fire-arm grazing wound, measuring 1 x 1/4 inches, at clorsum of his left hand.
Similarly, on examination of injured Abid Din, a fire-arm entrance wound with corresponding exit on lateral side of right thigh was observed. On the same day at 9.00 a.m. PW.13, conducted autopsy on the dead body of deceased Ghufran Ullah and found the following injuries on his person:--
(i) Three fire-arm entrance wounds on the right side neck, size 1/4 x 1/4 inches each,
(ii) Firearm exit wound, size 2 x 2 inches on the left side chin.
(iii) Firearm exit wound on the left ear size 1/2 x1/2 inches.
(iv) Firearm exit wound on the left side neck size 1/2 x1/2 inches.
Opinion: ' According to opinion of the Medical Officer, death of the deceased was the result of injury to his skull, brain and other vital organs. Probable time between injury and death has been given as instantaneous while between death and post-mortem about an hour.
' On post-mortem of deceased Sadiq Ali, Medical Officer found the following injuries:--
(i) Firearm entrance wound size 1/4 x 1/4 inches on the right side chest.
(ii) Firearm exit wound size 1/2 x1/2 inches on the left side chest.
(iii) Firearm entrance wound on the lateral side of left upper arm size 1/4 x 1/4 inches.
(iv) Firearm exit wound on the medical side of the left upper arm size 1/2 x1/2 inches.
(v) Firearm gazing wound on the medical side of right upper arm size 1 x 1/2 inches.
(vi) Left humorous fracture.
Opinion: ' As per opinion of the Doctor, the cause of death of the deceased was injuries to his heart and lungs. Probable time between injuries and death has been observed as instantaneous while between death and post-mortem within two hours.
' On the same day at 9.45 a.m. Autopsy on the dead body of Wilayat Shah was also conducted by PW.13 and found the following injuries on his person:-
(i) Firearm grazing wound size 3 x 2 inches on left corpus.
(ii) Firearm entrance wound size 1/2 x1/2 inches on right lateral side of chest.
(iii) Firearm exit wound on right side back of chest size 1/2 x 1/2 inches,
(iv) Firearm entrance wound on the right posterior side of chest size 1/4 x 1/4 inches.
(v) Firearm exit wound on the right interior side of the chest size 1/2 x1/2 inches.
(vi) Firearm entrance wound on the lateral side of the right upper arm size 1/4 x 1/4 inches.
(vii) Firearm exit wound on medial side of the right upper arm size 1/2 x1/2 inches.
(viii) Firearm grazing wound on the epigastria size 1 x 1/4 inches.
' The cause of death of the deceased has been given as injuries to right lungs and blood vessels.
6. Muhammad Mumtaz Khan S.I. (PW.16), after registration of the case, rushed to the spot and prepared site-plan Exh.PB on the pointation of eye-witnesses. During spot inspection, he secured bloodstained clay, sand and grass as well as some blood with the help of cotton, from the places of the deceased, vide recovery memos. Exh.PW.7/1 and PW.7/2. Vide recovery memo. Exh.PW.7/3 he took into possession 6 crime empties of 7.62 bore Exh.P.2 and broken glass of Suzuki No, M.1269- Peshawar. He also took into possession the last worn bloodstained garments of the three deceased vide recovery memos. Exh.PW.8/1 to Exh.PW.8/3. Suzuki mentioned above, having bullet marks, was also taken into possession vide recovery memo. Exh.PW.16/2. Vide recovery memos Exh.PW.16/4 and Exh.PW.16/5, he took into possession bloodstained garments of two injured. Since the accused were avoiding their lawful arrest, therefore, he initiated proceedings under Sections 204 and 87, Cr.P.C., sent the bloodstained articles to the FSL, reports whereof are Exh.PW. 16/13 and PW. 16/14, recorded statements of the PWs under Section 161, Cr.P.C. And on completion of investigation, handed over case file to Izhar Shah Khan SHO, who submitted challan against the accused in terms of Section 512, Cr.P.C. Against the accused. Both the accused were proceeded under Section 512, Cr.P.C. And were declared as Proclaimed Offenders by the learned trial Court vide order dated 10.05.2010.
7. Accused/appellant Amjad Ali was arrested on 28.01.2013. Supplementary challan was submitted against him before the learned trial Court, where he was formally charge sheeted on 13.03.2013, to which he pleaded not guilty and claimed Trial. To bring home the guilt of appellant, prosecution examined as many as sixteen witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under Section 342, Cr.P.C., wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath under Section 340 (2), Cr.P.C. Nor opted to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above.
8. Learned counsel for the appellant argued that appellant is innocent and has been implicated falsely in the case; that the mode and manner of seeing off father of the complainant, who allegedly Was proceeding to Saudi Arabia for performance of Hajj, being contrary with the common practice and customs of society, does not appeal to a prudent mind, as in our society Hajis are usually seen off by their kith and kin in a respectable manner by hiring a special vehicle for them; that no document about visit of deceased Wilayat Shah to Saudi Arabia for performance of Hajj has been produced during investigation; that complainant and PW Usman Akbar, being brothers inter-se, having land dispute with the accused, and being closely related to two deceased, are inimical and interested witnesses, therefore, their testimony cannot be believed and relied upon; that site-plan contradicts the version of the complainant, as he has not mentioned about presence of any Suzuki on the spot, but in the site-plan a Suzuki has also been shown; that no trial of blood has been observed by the I.O. On the spot on the points of the two deceased, who after receiving injuries, allegedly covered some distance; that injury on palm of left hand of the complainant is self-inflicted just to prove his presence on the spot; that mere stamp of injuries on the person of an injured witness would not be a certificate of his credibility and truthfulness; that PW Usman Akbar has failed to establish his presence on the spot; that injured PW Abid Din and other PWs, namely, Imran and Farukh Shehzad, being impartial persons, have been abandoned by the prosecution for no good reasons, which amounts to withholding of best available evidence, hence, adverse inference would be taken against the prosecution that had they been examined in the Court, they would not have supported the prosecution case; that only six empties have been recovered from the spot, which on one hand, do not commensurate with the number of injuries on the persons of deceased and injured, while on the other hand, these have not been sent to the FSL, so as to determine the number of the assassins; that nothing has been stated in his initial report by the complainant qua shifting of the dead bodies and injured to the hospital; that no recovery of the crime weapon or anything incriminating has been effected from direct or indirect possession of the appellant nor on his discovery nor has he confessed his guilt before any competent Court of law.
He vehemently contended that testimony of complainant and PW Usman Akbar, being contradictory with the site-plan as well as medical evidence and finding no corroboration from other circumstances of the case, has wrongly been believed ancrrelied upon by the learned trial Court; that mere abscondence of an accused would not be sufficient for recording conviction in a capital charge; that prosecution has miserably failed to bring home the guilt of the appellant through cogent and confidence inspiring evidence beyond any shadow of doubt, therefore, while extending benefit of doubt to the appellant, he be acquitted of the charge.
9. Conversely, while controverting the arguments of learned counsel for the appellant, learned counsel for the complainant contended that appellant along with his absconding co-accused is directly charged for brutal murder of three deceased and causing injuries on the persons of two injured in a promptly lodged report, eliminating the possibility of consultation, deliberation and substitution; that incident is that of a broad daylight and parties being real cousins inter-se, question of mistaken identity does 'not arise; that presence of injured complainant and PW Usman Akbar, is well established on the spot, out of them complainant also sustained injury; that testimony of eye-witness gets corroboration from medical evidence, recoveries from the spot i,e, blood, crime empties, Suzuki having bullet marks, and documents about Hajj of deceased Wilayat Shah brought during cross-examination of the complainant by the defence himself; that mentioning of each and every detail in the FIR is not essential; that ocular account, being straightforward and confidence inspiring, cannot be discarded on the mere ground of close relationship of the eye-witnesses with the deceased; that it is quality of the evidence which is of vital important in dispensing justice in criminal cases and not the quantity, thus, statements of two eyewitnesses would be sufficient for recording conviction; that motive as alleged, has been squarely proved; that injuries on the persons of the three deceased speak volumes about brutality of the accused; that dimension of injuries on the persons of the deceased squarely proves the incident not to be the job of a single person; that nothing has been brought on record to prove the injury of the complainant to be self inflicted; that the prosecution has proved the guilt of the appellant through cogent, credible and confidence inspiring evidence upto the hilt, and the learned trial Court by appreciating the evidence in its true perspective, has reached to a right conclusion by holding the appellant guilty of the offence. He however, added that when the guilt of the appellant was squarely proved and there was no mitigating circumstance, the learned trial Court ought to have awarded him normal penalty of death, as provided for the offence. He sought dismissal of the appeal and requested for enhancement of sentence of the appellant/convict.
10. Learned AAG while supporting the arguments of learned counsel for the complainant, contended that keeping in view the gravity of the offence, where three innocent human lives have been done away with brutality and two have been injured, the appellant deserves exemplary punishment i,e, normal penalty of death, as there is no mitigating circumstance to suggest any lenient view against him. He sought dismissal of appeal of the appellant and requested for enhancement of sentence of the appellant/convict by accepting State appeal.
11. We have given our anxious consideration to the exhaustive arguments of learned counsel for the parties, learned A.A.G. For the State and perused the record with their valuable assistance.
12. On the face of record, this untoward incident took place in early hours of November, 2007 at 8.00 am., on Swabi road near Kalu Khan Main Stop (Intizargha), which has been reported by injured complainant Maqsood Ali with promptitude at 8.20 am. i.e within 20 minutes. The promptly lodged report, eliminates the possibility of deliberation, consultation, concoction, and fabrication on the part of complainant. Being a broad daylight incident, and parties' real cousins inter-se, question of any mistaken identity does not arise. We do not see any circumstance which may suggest substitution of the accused because it does not appeal to a prudent mind that complainant would let off the real assassins of his father and brother by implicating his innocent cousins without any reason. Guidance in this regard may be derived from the judgment of the apex Court in case titled, "Zar Bahadar vs. The State" (1978 SCM R 136), wherein it has been held "that witnesses related to deceased would not normally allow real murderer to escape by implicating an innocent person and evidence of such witnesses requires only careful scrutiny but not to be rejected on the score of close relationship alone". Complainant without any wastage of time directly charged the appellant and absconding co-accused (brother of the appellant) by furnishing true account of the incident.
Motive alleged by him has been proved by him as well by Abdul Latif (PW.13). PW Abdul Latif deposed that he had purchased some land from deceased Wilayat Shah vide deed Exh.PW.13/1, which land was claimed by father of the accused; that differences developed between deceased Wilayat Shah and father of the accused on execution of the aforesaid deed. He further deposed that there were disputes between fathers of both the parties on other properties. In light of statement of Abdul Latif, we would not hesitate to hold that land disputes prompted the accused to do away with Wilayat Shah along with his sons from their path.
13. Maqsood Ali injured complainant while appearing as PW.11 furnished the ocular account of the incident. In examination-inchief, he reiterated the same story as set forth by him in his report. He has been subjected to taxing cross-examination by the defence, but nothing favourable could be extracted from him. He stuck to his stance and successfully passed the test of cross-examination.
His statement is consistent with the testimony of PW Usman Akbar on each and every material aspect of the incident. Admittedly, complainant also sustained injury in the incident; therefore, we entertain no amount of doubt about his presence on the spot at the time of incident. The argument of the learned counsel for the appellant that his injury is self inflected is unpersuasive, because no shred of evidence whatsoever has been led to prove injury of the complainant as such. Had it been so, the medical officer would have observed charring marks on his injury, but no such remarks has been given by the Doctor neither in medico legal report of injured complainant nor in his Court statement. As regard another limb of the arguments of learned counsel for the appellant about non-mentioning of Suzuki by complainant in his initial report, suffice it to say that this omission of such a trivial nature, would not damage the prosecution case, because said Suzuki was neither the ownership of complainant party nor in their occupation, rather was being plied on the road by a driver who was alien to them. Complainant alongwith his father Wilayat Shah and brothers Sadiq All and Usman Akbar, was waiting for conveyance on the crime spot to see off their father at Peshawar Haji Camp, when all of a sudden the accused emerged there and shot dead his father and brother Sadiq Ali and attempted at his life by causing him injury, so complainant being in severe shock of murder of his father and brother as well as pain of his own injury, would not have given attention to the vehicles plying on the road. Keeping in view the peculiar facts and circumstances of this untoward incident, non-mentioning of Suzuki in his report being a minor omission, is ignorable, as in such critical situation, no one could be expected to observe each and every thing on the spot, not concerning him. Except above, complainant has given each and every detail of the incident.
14. Usman Akbar, son of Wilayat Shah and brother of complainant as well as deceased Sadiq Ali appeared as PW.12. He is also eye-witness of the incident. He deposed that on the day of occurrence his father was going for Hajj, so he, complainant and Sadiq Ali, accompanied him to see him off at Peshawar Haji Camp, and the moment they reached the crime spot at Swabi road, in the meantime at 8.00 am. Appellant alongwith absconding co-accused Zulfiqar alias Bhutto, emerged there duly armed with Kalashnikovs and opened fire at them, as a result, his father Wilayat Shah, brother Sadiq Ali and a passerby Ghufran Ullah got hit and died on the spot, while complainant Maqsood Ali and cleaner of Suzuki, namely, Abid Din sustained injuries whereas he luckily remained unscathed. This witness has also been subjected to lengthy and comb searching cross-examination by the defence, but nothing favourable to defence could be extracted from him.
Rather he remained consistent with the complainant on each and every aspect of the occurrence and corroborated his testimony.
15. The story furnished by complainant has been justified by the defence in cross-examination of injured Maqsood Ali where while replying to a question of defence, he deposed that though he had not provided the documents of his father about performance of Hajj to the I.O. During investigation, as those were misplaced at that time, he however placed these documents on file i,e, a receipt of "Abu Talha Hajj Services (Pvt.) Limited Peshawar), in the name of his deceased Wilayat Shah, containing detail of payment of Rs, 145000/-, CNIC number of the deceased etc. He also produced a congratulation receipt in the name of deceased Wilayat Shah about his nomination to perform Hajj in December, 2007. In the aforesaid receipt Flight No, PK.1211 and date of departure of deceased Wilayat Shah, has been mentioned as 17th November, 2007 at 0615 hours. The occurrence has taken place on 16th November, 2007 at 08.00 a.m. i,e, a day prior to his departure from Pakistan.
There is another card on the file in the name of Wilayat Shah deceased, issued by Government of Pakistan Ministry of Religious Affairs, Zakat & Usher, showing detail of vaccination of the deceased before leaving for Saudi Arabia. The credibility and authenticity of all these documents have not been questioned by the defence in cross-examination of the complainant. These documents squarely justify the story of the complainant that they were accompanying their father who was going for Hajj. As, usually people, nominated for Hajj, reach "Haji Camp" Peshawar, a day prior to their departure from Pakistan to Saudi Arabia, where they are provided special training and necessary instructions of the Hajj. In the instant case, as manifest from Hajj documents of deceased Wilayat Shah, he had to leave Pakistan on 17.11.20007, so he along with his sons/eyewitnesses Maqsood Ali and Usman Akbar as well as his deceased son Sadiq Ali, was on the way to "Haji Camp Peshawar" from village on 16.11.2007, as alleged by both the eye-witnesses in their Court statements, but met with an unfortunate incident. The argument of the learned counsel for the appellant that the mode and manner of travelling of Wilayat Shah to Peshawar in routine transport is against the normal practice and customs of the society is not tenable, as there are no hard and fast rules, that each Haji should be seen off by their kith and kin in a special vehicle. Each and every person is the owner of his own will and it depends upon him whether he leaves for Hajj in pomp and show or in a simple way. We have observed that many people do not like pomp and show while proceeding to Hajj and prefer simple way, like the one adopted by the complainant party in the instant case. Proceeding of deceased Wilayat Shah to "Haji Camp" on the day of incident, is well established. He being father, presence of deceased Sadiq Ali, PWs Maqsood Ali and Usman Akbar, his real sons to see him off at Peshawar, was natural. In view of the above, we entertain no amount of doubt, about presence of both the eyewitnesses on the spot at the time of incident with the deceased.
16. The ocular account is supported by recovery of blood from the spot from the places of the three deceased and positive Serologist Reports as well as recovery of crime empties of 7.62 bore, which establish the crime spot to be the same as alleged by the complainant. The unnatural death of the three deceased and fire-arm injuries on their persons in light of autopsy reports further corroborates the prosecution version. In presence of direct ocular evidence of unimpeachable character, mere non-sending of the empties to the FSL, which otherwise is the slackness of the I.O., would not be fatal to the prosecution case being evidence of the second degree. Admittedly, where the direct evidence is confidence inspiring, trustworthy and wholly believable, then there is no need of corroboratory evidence i,e, evidence of the second degree. Hence, mere non-sending of the crime empties to the FSL per se is no ground for rejecting such evidence and throwing away the entire prosecution evidence, which otherwise, we have found reliable and trustworthy.
17. As regard close relationship of the PWs, as agitated by learned counsel for the appellant, suffice it to, say that a trustworthy and confidence inspiring testimony of a witness cannot be discarded on the basis of his mere close relationship with the deceased or complainant. As stated earlier, both the eye-witnesses of the instant case have furnished straightforward and confidence inspiring account of the incident, corroborated by other strong circumstances of the case, therefore, we have no reason to discard their testimony on the basis of their close relationship. We have observed that in the present society no alien stands witness against the offenders to earn enmity for himself and for his family for the sake of others, and if the Courts, discard the testimony of witnesses on mere close relationship, then there will be no evidence at all against the culprits and they would easily escape from the grip of the law, which exercise would increase the ratio of crimes in the society. Such tendency though important, has been taken note of in a number of cases and condoned in view of the peculiar conditions prevailing in the country. In the case in hand, the ocular account furnished by PWs Maqsood Ali and Usman Akbar is worthy of credence, confidence inspiring, credible and irrefutable which has rightly been considered by the learned trial Court. The defence has failed to bring an iota of evidence to prove any ulterior motive of the eye- witnesses towards the appellant/accused to falsely implicate him in the case. The apex Court in Dildar Hussain's case (PLD 2004 Supreme Court 663) while dilating upon the evidence of related witness, in Paragraph No, 11 of the Judgment observed as under:-- "Learned counsel appearing for respondent No, 3 contended that as far as this witness is concerned, he is also related to the complainant party as it has been admitted by P.W. Dildar Hussain in his cross-examination. We inquired from him as to whether such question was put to him his answer was in negative. It may be noted that firstly mere relationship with the complainant party is not sufficient to discard evidence unless it is proved that he has ulterior motive to involve the Respondent No, 3 in the commission of the offence".
18. In Muhammad Mansha's case, the Hon'ble Supreme Court defining interested witness has held as under:-- "An interest witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. 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".
' The principles for accepting the testimony of even an interested, witness, are set out by the Hon'ble Supreme Court in Nazir's case (PLD 1962 SC 269).
19. The arguments of the learned counsel for the appellant that adverse inference is to be taken against the prosecution because of non-production of rest of the eye-witnesses named in the FIR, is without any force, as in criminal cases, what is more essential to be observed by the Courts, is the veracity and credibility of the witnesses and not their numbers and relationship, because it is quality and not the quantity of the evidence which matters. In the instant case two eye-witnesses have been examined. By virtue of Article 17 of the Qanun-e-Shahadat Order, 1984, in financial matters, two male or one male and two female witnesses, have been made the requirement of law to prove the financial obligations. Whereas in all other matters including criminal, there is no such obligation, which clearly suggest that a single witness is sufficient to prove a fact. When the law permits a fact to be proved through the statement of a single witness, there is no reason or logic to call for more witnesses than one. The Hon'ble Supreme Court in Zar Badadar's case (1978 SCM R 136), has clarified the situation by holding the following:-- "We are also aware, and learned counsel place great stress on it that according to the two eye- witnesses, Muhammad Sher was with them and that the other persons in the hotel including its proprietor had seen the murder. Mr. Enayat Elahi, therefore, submitted that the Courts had erred in law in not drawing an adverse inference against the prosecution for not examining these other witnesses. The submission is not correct because the prosecution is not required to examine every eye-witness of a crime. The only question if whether the evidence of the witnesses is sufficient to prove the prosecution version of the crime and both the Courts have held that the evidence of PWs Akbar and Roidad were suffict to prove the petitioner's guilt as we indicated this finding is supported by evidence, therefore, nothing turns on the fact that the prosecution did not examine every possible eye-witness of the murder. Additionally, as pointed out by the Courts, the ocular evidence receives support fr,om the evidence for the motive of the crime and from the petitioner's abscondance because the abscondance was far a long period".
' Same view has been reiterated by the apex Court in case titled, "Muhammad Ahmad and another vs. The State and others" (1997 SCM R 89), that "prosecution is not required to examine every eye-" witness of a crime".
20. In case titled, Muhammad Mansha vs. The State" (2001 SCM R 199), the Ho'ble Supreme Court while dilating upon the spirit of Article 17 of the Qanun-e-Shahadat Order, 1984, held the following:- "A bare perusal would reveal that the language as employed in the said Article 17(1)(b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness".
' In the Judgment Supra in Para No, 7, the apex Court held that conviction can be recorded on the testimony of a single witness in the following words:-- "Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. (Principles and Digest of the law of Evidence by M.Monir page 1458).
' The Hon'ble Supreme Court in the judgment Supra while referring to CD. Field on the law of Evidence (Page 4746) reproduced the following:- "Thus evidence of a single witness is sufficient to sustain and may legally be made the sole basis for a conviction, the relevant Section 134 having enshrined the well-recognized maxim that 'evidence has to be weighed and not counted'. Through the Legislature has placed no jurisdictional limitation on the power of a Judge to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from time to time evolved some rules and guidelines of circumspection as to when such evidence can be or cannot be acted upon without corroboration. (Pema Dukpa v State Sikkim. 1981 Cr. U 276).
Taking guidance from the judgments of the apex Court (Supra), the learned trial Court was right in not drawing adverse inference against the prosecution for not examining rest of the eye-witnesses named in the FIR, who even otherwise, were stated to have been won over.
21. It is borne out from the record that soon after the incident, appellant/accused went into hiding and remained fugitive from law for considerable long period, for which he has not furnished any plausible explanation. Proceedings under Sections 204 and 87, Cr.P.C. Had been initiated and completed against him And even trial under Section 512, Cr.P.C. Was conducted wherein he was declared Proclaimed Offender. The unexplained disappearance of the appellant from the ordinary place of residence immediately after the occurrence knowingly that he was being charged for the murder of the deceased tantamounts to deliberate absconsion with guilty mind, therefore, it would be another circumstance to establish his culpability.
22. For the forgoing discussion, we have reached to an irresistible conclusion that prosecution has proved the guilt of the appellant up to the hilt through cogent and confidence inspiring evidence and the learned trial Court has rightly held him guilty of the offence. Resultantly, we while dismissing his appeal, maintain his conviction recorded by the learned trial Court.
23. Now the moot question before us would be the quantum of the sentence to be awarded to the appellant to meet the ends of justice. The impugned judgment reveals that learned trial Court has not furnished any mitigating circumstance to warrant lesser sentence of the appellant-convict under Section 302(b), PPC, readwith Section 7 (a) Anti-Terrorism Act, and probably so because there was no mitigating circumstance before the learned trial Court. We have also scrutinized the record/evidence from each and every angle, but did not find any such circumstance to persuade us for taking lenient view against the convict. The evidence on record proves that convict/respondent's hands are coloured with the blood of three deceased and two injured. It would be immaterial that whether his fire or that of absconding co-accused proved fatal, because we are confronted with three dead bodies of the deceased and two injured for which two accused, including the convict are charged. Under Section 34, PPC, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. Common intention implies acting in concert in pursuance of pre-arranged plan which is to be proved either from conduct or from circumstances or from incriminating facts. In the instant case the conduct of the convict i,e, having a land dispute with the complainant party, arming himself with deadly weapon, reaching the spot along with his co-accused, and then committing offence, clearly proves his common intention in commission of the offence. Common intention generally involves element of common motive, pre-plan preparation and actual pursuance to such plan, which in the case in hand, are very much apparent on the part of the accused. The learned counsel for the convict was specifically asked to point out any mitigating circumstance which may warrant lesser punishment but he failed. Three innocent lives have been done to death while two have been injured by attempting at their lives by the appellant, thus, keeping in view his brutality, he deserves no leniency. Finding no mitigating circumstance, we by allowing Criminal Appeal No, 591-P/2013, titled, "The State vs. Amjad Ali", enhance the sentence of convict Amjad Ali from life imprisonment to the normal penalty of death on three counts under Section 302(b)/34, PPC readwith Section 7 (a) of Anti-Terrorism Act. He be hanged by the neck till he is dead. The conviction and sentences of the convict under remaining offences as awarded by the learned trial Court shall remain intact.
24. The appellant has been tried by Special Court/ Judge Anti Terrorism Court under Anti Terrorism Act, and there is, no provisions of criminal revision for enhancement of sentence under the Anti Terrorism Act, therefore, Cr.R. No, 104-P/2013 filed by the complainant, being not maintainable, stands dismissed.