SAJJAD ALI SHAH, J.---The appellant Bahram along with co-accused Moran was arrested on 20- 6-2005 in Crime No.35 of 2005 of Police Station Karampur, District Kashmor for offence under sections 302, 324, 148, 149 P.P.C. And was sent up for trial. After regular, trial, the learned Additional Sessions Judge, Kandhkot through judgment dated 5th October, 2009, while acquitting the co- accused Moran, convicted the appellant and sentenced him to death under section 302(b) P.P.C.
Thus appellant has impugned the conviction through instant appeal, whereas the trial Court has sent a Reference (No.1 of 2010) under Section 174, Cr.P.C. For confirmation of death sentence.
2. Per prosecution, on 11-6-2005 at 2000 hours complainant Javed Akbar lodged F.I.R. At Police Station Karampur, District Kashmor; stating therein that they used to cultivate the lands of Imam Bux Jafferi. On 11-6-2005, when he along with his brothers Sabz Ali, Abdul Qadir was irrigating their lands situated in Deh Jamal, where at about 07.00 p.m., accused Mooran, Bahram both sons of Sher Dil, Ghulam Mustafa alias Bagi, Sher Dil and Dil Murad all sons of Bahadur came there. The accused Sher Dil was having a spade, while rest of the accused persons were armed with guns.
Immediately after their arrival, they asked complainant party to stop irrigating their lands as they would first irrigate their lands, to which Sabz Ali objected, upon which they had altercation.
Thereafter, the accused Moran caused direct fire upon Sabz Ali, which hit him and he fell down, accused Ghulam Mustafa also fired at Sabz Ali which also hit him, accused Bahram also fired at Sabz Ali. Accused Dil Murad with intention to kill directly fired on the complainant Javed Akber, but he saved himself by falling on the ground and the fire hit accused Moran, who fell down. Since the complainant party was empty handed and fearing of their lives, they remained silent and when all the accused persons took away injured accused Moran towards Eastern side, the complainant party saw that Sabz Ali sustained fire arms injuries at his chest, abdomen, both legs and other parts of body, blood was oozing from injuries and was dead. The complainant after arranging transport brought the dead body of Sabz Ali at police station, seeking registration of a case.
3. The appellant Bahram along with co-accused Moran was arrested, and arraigned. After complying with the provisions of section 265-C Cr.P.C. Charge at Exh.4 was framed on 13-6-2007 against both the accused to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined P.W.1 Shah Nawaz as Exh.6, P.W.2 complainant Javed Akbar as Exh.7, who produced F.I.R. As Exh.7/A, receipt of receiving dead body as Exh.7/B. P.W.3 Abdul Hafeez as Exh.8 who produced inquest report of deceased as Exh.8/A and mashirnama of inspection of place of incident as Exh. 8/B, mashirnama of arrest of both accused as Exh.8/C, mashirnama of recovery of crime weapon on the pointation of accused persons as Exh.8/D, mashirnama of examination of dead body as Exh.8/E. P.W.4 Ali Hassan as Exh.9 who produced sketch of place of incident as Exh.9/A. P.W.5 SIP/SHO Sono Khan as Exh.12 who also produced inquest report of deceased as Exh.12/A. P.W.6 PC Ali Nawaz as Exh.13. P.W.7 SPO Shamsuddin as Exh.14 who produced Entry dated 29-6-2005 as Exh.14/A. P.W.8 Dr. Muhammad Siddiq, MLO who conducted post mortem on the dead body of deceased as Exh.15 who produced post mortem report as Exh,15/A. .Thereafter vide statement as Exh.19 prosecution closed its side.
5. Statements of both the accused were recorded under section 342, Cr.P.C. Wherein they denied all the allegations levelled against them and further stated that they have been falsely implicated by the complainant due to enmity. However, they did not examine themselves on oath nor led evidence in their defence.
6. Mr. A. Q. Halepota, learned counsel for the appellant contended that the conviction in the instant case is mainly based on the testimony of two alleged eyewitnesses namely Shah Nawaz (P.W.1) and Javed Akbar (P.W.2) whose presence on the scene of crime, keeping in view material contradiction in their testimony, appears to be highly doubtful. While referring to the evidence pointed out that Javed Akbar (P.W.2) attributed firm arm injury on the chest of the deceased to the appellant, whereas according to Shah Nawaz (P.W.1) such injury was inflicted on chest, abdomen, bladder and thigh. It was next contended that the evidence of both the alleged eye-witnesses does not inspire confidence and is not worthy of credence on account of acquittal of co-accused Moran and letting off of another co-accused Sher Dil by the police specially when the complainant's application under section 193 Cr.P.C. Was rejected by the trial Court. It was next contended that the complainant Javed Akbar in his examination-in-chief stated that he along with his brothers Shah Nawaz and Abdul Qadir took the dead body to the police station, per counsel had it been true and they were present at police station there is no reason why their 161, Cr.P.C. Statements were not recorded by police on that very day and non- recording of their 161, Cr.P.C. Statements on the very day of incident belies their statement.
7. According to the learned counsel, trial Court erred in convicting appellant as on the basis of same set of evidence co-accused Moran was acquitted and against his acquittal neither the State nor the complainant filed any appeal; that P.W.5 A.S.-I. Sono Khan stated that he had collected five empty cartridges of .12 bore in presence of mashirs from the place of incident but in the trial Court only three empties were shown as case property and the mashirnama of scene of offence Exh.8-B reflects the figure of 5 empty shells has been changed to figure of 3, which interpolation is patently visible. Appellant as well as the acquitted accused are real brothers and sons of Sher Dil, the let off accused and live together; the incident took place on 11-6-2005, whereas, the guns were allegedly produced by the appellant as well as the acquitted accused from their house on 29-6-2005 which is totally unbelievable as no one after committing murder would keep the crime weapon at his house. It was lastly contended that neither the guns nor empties were sent to Forensic Expert, therefore, their production is of no consequence. To support his contention that conviction could not be based on the evidence on which one accused was acquitted, reliance has been placed on the judgments of the apex Court on the case of Muhammad Shah v. The State (2010 SCM R 1009), Abid Ali and others v. The State (2011 SCM R 208) Muhammad Sadiq v. Muhammad Sarwar and others (1979 SCM R 214), Muhammad Yunus v. The State and another (1979 SCM R 225) and Ata Muhammad v. The State (1995 SCM R 599), Ahmed v. The State (1982 SCM R 1049).
8. On the other hand, learned Assistant Prosecutor General contended that the judgment under appeal is well reasoned and therefore does not require any interference; It was a broad-daylight cold blooded murder of the victim, committed by the appellant, eliminates the chances of mistaken identity. The ocular account of the incident given by the prosecution witness fully corroborates with the medical evidence. The record further does not reflect anything to assume false involvement of the appellant/convict in the instant case the complainant party being real brother of the deceased; therefore, the question of false involvement does not arise. Per Prosecutor, there are no material contradictions in the testimonies of both the eye-witnesses, who despite lengthy cross-examinations have remained steadfast on their confidence inspiring evidence, therefore, the appeal be dismissed.
9. We have heard the ltarned counsel for the respective parties at length, have minutely scrutinized the record and have perused the case-law cited at bar.
10. According to the prosecution the incident in the present case had taken place on 11-6-2005 at about 7.00 p.m. At the lands of the complainant situated in Deh Jamal where the accused party attempted to divert water to their lands and after an altercation which consumed 10/15 minutes, the accused party shot Sabz Ali who upon sustaining fire arm injuries died on the spot. P.W.1 Shah Nawaz and P.W.2 Javed Akbar (complainant) real brothers of the deceased Sabz Ali have deposed that they were the eye-witnesses of the incident and were present on the spot at the time of incident. The place of incident was at a distance of 12 kilometers from police station and after the incident P.W.2 went to hire Datson which consumed 10/15 minutes whereafter the dead body of the deceased Sabz Ali, was taken to the Police Station Karampur where at the instance of P.W. Javed Akbar the F.I.R. Was recorded on the same day at 8.00 p.m. Thereafter the dead body was referred to MO RHC Karampur for post mortem. Post mortem report reflects that the examination of dead body commenced on the same day at 9.15 p.m. And ended at 10.15 p.m. The postmortem report states that time between the injury and death was "INSTANTANEOUS" and between death and post mortem "about 2 hours 15 minutes" which affirm the time of incident to be 7.00 PM. The promptness with which the F.I.R. Was lodged not only eliminates the chances of consultation but also of false implication. Besides this, it is an admitted position that both eye-witnesses are real brothers of the deceased and there had been pleaded no such enmity or consideration which could motivate real brothers to substitute real culprits with appellant. In absence of such a motive or consideration plea of substitution by a blood-relation cannot sustain. Further, it is an admitted position that both the prosecution witnesses, who have given the ocular account, are the real brothers of the victim and were present at the spot, had no reason whatsoever to substitute the appellant by letting off the real culprits. Further the precision with which the ocular account was given by the P.Ws. 1 and 2 whereby the manner of incident; the time between the incident and F.I.R. Accounted for does not permit us to believe that incident was unseen one or that blood-relation could be believed to have involved innocents in a promptly lodged F.I.R. Because the emotions of the complainant (blood relation) do not permit substitution in promptly lodged matter. However, since burden always remains upon the prosecution to establish the ocular account, therefore, let's examine the ocular account.
11. To prove ocular account, the prosecution produced P.W.1 Shah Nawaz and P.W.2 slaved Akbar, both are the real brothers of the deceased Sabz Ali and have testified as follows:-- P.W.1 Shah Nawaz "About three years back I, Sabz Ali, Javed, Abdul Qadir were irrigating the seed of rice crop at the land of Master Imam Bux Jaffer at 07/00 p.m, when accused Sher Dil having spade, accused Moran, Ghulam Mustafa, Bahram and Dil Murad having guns came there and asked us that they will block the water flowing in our land for irrigating rice crop. My brother Sabz Ali asked them that after when our land is irrigated then they can flow the water in their land, on which they have exchange hot words and accused Mohran caused straight fire shot upon Sabz Ali which hit over his chest, accused Ghulam Mustafa alias Bagi also fired upon Sabz Ali over his abdomen, accused Bahram also fired with his gun upon Sabz Ali which hit over his bladder. Accused Dil Murad also fired at my brother Javed but the same was missed and hit accused Mohran, then the remaining accused at once shifted Mohran towards North by foot. We found injuries over the person of Sabz Ali were bleeding and was died: My brother Javed hired a Datsun, wherein we have shifted the dead body and brought at Police Station Karampur, where from police referred the dead body to M.O. RHC Karampur for post mortem and report. After post mortem we have brought the dead body at our village. After funeral next day in the morning police came at our village and inspected the place of incident. My statement under section 161, Cr.P.C. Was recorded by police. Accused Mohran and Bahram present in Court are same. Accused Ghulam Mustafa and Dil Murad are still absconders."
P.W.2 Javed Akbar "On 11-6-2005 at about 7.00 p.m. I along with my brother Shah Murad, Abdul Qadir and Sabz Ali were watering paddy seeds. Accused Sherdil armed with spade, Moran armed with gun, Behram armed with gun, Ghulam Mustafa alias Bagi armed with gun, Dil Murad armed with gun came there and asked that they will close water to our paddy seeds and will divert water to their paddy seeds.
On which my brother Sabz Ali restrained the accused from closing the water flowing in our paddy seeds. On which accused exchanged harsh words with my brother Sabz Ali and abused him.
Accused Moran caused fire shot injuries to my brother Sabz Ali on his chest, my brother raised cries and fell down on the ground. Accused Ghulam Mustafa alias Bagi also caused fire shot injury to my brother Sabz Ali in his chest. Accused Bahram also caused fire shot injuries to my brother Sabz Ali on his chest. Accused Dil Murad made fire on me with intention to murder me but it was missed, as I had fell down on the ground, the fire shot made by accused Dil Murad on me hit to accused Moran. Accused Moran on sustaining fire shot raised cries and fell down on the ground.
Other accused took accused Moran and went towards Northern side. Then I and my brother Shah Murad Abdul Qadir went to our brother Sabz Ali and saw him that he had died due to injuries. I left my brother P.Ws Shah Murad, Abdul Qadir over the dead body of my deceased brother Sabz Ali, and I went to Police Station Karampur where I lodged the F.I.R. I produce F.I.R. At Exh.7-A it is same, correct and bears my signature. My brothers P.Ws. Shah Murad and Abdul Qadir and I myself had taken dead body to P.S. By Datson, thereafter I had lodged the F.I.R. And thereafter police had referred the dead body of my deceased brother Sabz Ali to RHC. Karampur for post mortem. Doctor conducted post mortem over dead body of my brother Sabz Ali, thereafter the dead body was handed over to me by Doctor, we took dead body to our village. I produce the receipt of receiving the dead body of my deceased brother as Exh.7-B, it is same, correct and bears my signature. I had shown the place of vardhat to police on the next day of incident. Accused Moran and Behram present in Court are same, while other accused Ghulam Mustafa alias. Bagi, Dil Murad, Sherdil are not present in Court and are absconders."
12. The scrutiny of ocular account B furnished by both the eye-witnesses viz-a viz F.I.R. Is found very consistent so far as the name' of assailants; manner of their arrival; altercation resulting into unfortunate death of deceased: and their role is concerned. Both the eye-witnesses categorically stated that accused Moran, Behram, both sons of Sherdil, Ghulam Mustafa alias Bagi Sherdil and Dil Murad all sons of Bahadur came at their lands, the accused Sherdil was having spade, while rest of the accused were armed with guns. #They further stated that Moran, Behram and Ghulam Mustafa alias Bagi caused fire shot injuries to their brother Sabz Ali. They further stated that Dil Murad fired at P.W.1 Javed Akbar which missed and hit accused Moran who fell down and the remaining accused took Moran towards Eastern side. Thus a close scrutiny of the ocular account, brought on record through evidences of these witnesses, shows that both the eyewitnesses remained strongly stuck with each other in respect of every single detail of incident and despite a lengthy test of cross examination the defence could not succeed to shake these witnesses on material aspects which could be termed as a 'contradiction' effecting the very evidence of these witnesses.
13. It has been pleaded that the ocular account of the incident given by the prosecution witnesses contains material contradiction and was partially disbelieved by the trial Court, therefore, capital punishment on such ocular evidence cannot sustain unless corroborated with circumstantial evidence. At this juncture it would be relevant to endorse that variations in statements of witnesses, which are neither material nor seriously affect the case of the prosecution, cannot be termed to be 'contradiction'. On this touchstone, we would like to compare the ocular evidence of both the eye-witnesses to find out as to whether there is any `contradiction' in their evidence affecting the case of prosecution or otherwise with regard to the names of the assailants, the weapons with which they were armed, the seat of injuries and role assigned to the accused persons.
14. Though, both the eye-witnesses categorically contended that deceased Sabz Ali sustained three gun shots, but *according to P.W. Shah Nawaz the seat of injuries were (i) chest, (ii) abdomen and bladder, (iii) thighs, whereas, according to P.W. Javed Akbar the deceased sustained all the three gun shots on his chest. In our opinion this could not be termed as contradiction because it could, at the most, be a difference of observance and expression. The witnesses have supported each other not only in respect of manner of incident but the role, played by each of the culprits, therefore, mere difference of place of seating of injuries cannot be taken to disbelieve the evidence of witnesses nor can such variation be legally taken as 'contradiction'. It is not the requirement of the law that a witness must give exact location or place of seating because a single view may bring different picture for two, viewing the same from different places/ points. Moreover, in the given circumstances when the deceased was shot at by the accused persons as seriatim, thus it would be very difficult to ascertain the exact seat of gunshot as the pallets spread all over the body. The evidence of these two witnesses fully corroborate with the postmortem report which reflects that deceased had suffered 46 pallet injuries on his chest, 37 pallet injuries on his abdomen/ bladder, 45 pallet injuries on his thighs and 5 pallet injuries on his penis and testicles. In the circumstances, we are of the view that the dissimilarity of ocular accounts to the extent of seating of injuries is of no consequence at all for defence to claim the same as a 'material contradiction'.
15. It was next contended that the trial Court by disbelieving the ocular account, given by these two eye-witnesses, acquitted co-accused Moran but on the same evidence convicted present appellant, which was contrary to settled principles of evidence as enunciated by the Apex Court in the case of Atta Muhammad (supra) and Ahmed and others (supra). The reason and the evidence which led the trial Court to disbelieve the ocular account to the extent of co-accused Moran was that both the eye-witnesses in their evidence stated that accused Dil Murad (absconding accused) fired on P.W. Javed which missed and hit co-accused Moran and then remaining accused shifted accused Moran towards North, whereas P. W .7 Shamsuddin, the second Investigating Officer, deposed that "when accused Moran was arrested by me, he had no injuries on his person". In order to examine this contention, we have minutely scrutinized the ocular account given by both the witnesses which reflect that they in their evidence have categorically stated that co-accused Dil Murad fired on P.W. Javed which missed and hit accused Moran but there was not a single suggestion denying that the accused Moran did not suffer any fire shot injury, though following questions were specifically put to P.W. Shah Nawaz:-
(1) We had also narrated to the people that accused Moran had also sustained fire shot injuries;
(1) I cannot say that on what part of body accused Moran had sustained fire shot injuries;
(2) I do not know wherefrom accused Moran had got treatment.
' It appears to be very strange that despite explicit deposition of both the eye-witnesses regarding injury sustained by co-accused Moran, not a single Suggestion denying such injury came from defence, which lead us to believe that the statement of the Investigating Officer may be an obliging one, Not only this, but the defence never attempted to bring anything on record to establish such claim. Here it is worth to make clear that the prosecution witnesses were/are always required to depose what they see/observe; prosecution is to prove its own case by going on line of its case which prosecution did by sticking with what they observed to extent of falling of acquitted accused Moran and his removing from place of incident by his companions. In such eventuality, the burden was upon the defence to have proved otherwise as per Article 119 of the Qanun-e- Shahadat Order, 1984 but it is evident that despite such specific claim of the prosecution the defence did not make any attempt to resort to such course. The words of an investigating officer cannot be allowed to prevail over the words of the eye-witnesses particularly when acquitted accused Moran was arrested after nine (9) days of the incident. The words of the investigating officer that at time of arrest the accused Moran was not injured have never been claimed to be after examination of body of acquitted accused Moran by him (investigating officer) or by any medical officer, therefore, such words of the investigating officer cannot be taken to have destroyed the prosecution case or for disbelieving the testimony of blood relation, who otherwise, have stuck with each other in respect of every detail of the incident. Furthermore, the failure of the defence to cross-examine the prosecution witnesses on such a vital portion of their testimony amounts to an admission on the part of defence that Moran suffered gun shot injury may be a single pallet. Reference can be made to the case of Sheraz Tufail v. The State (2007 SCM R 518).
Lastly, neither any logic is assigned nor any reason is advanced for levelling such false accusations against absconding' accused Dil Murad as the statement of the eye-witnesses that "accused Dil Murad fired at P.W. Javed which missed and hit accused Moran". The words "hit accused Moran" which after finding in conflict with the statement of Investigating Officer resulted in acquittal of co- accused Moran, did not add any strength to the case of the prosecution.
16. We are fully conscious of the fact that in our society there is trend of widening the net of prosecution by falsely implicating the near relatives of the principal accused, but such could only be possible when the plea of deliberation succeeds. In the instant case time between the incident and registration of the F.I.R. Is only one hour and that too is fully explained as 10/15 minutes were consumed in altercation resulting in firing and death of the victim and next 10/15 minutes were consumed in hiring vehicle on which dead body was taken to police station which was at a distance of 12 kilometers and consumed 20/30 minutes. The promptness in lodging the F.I.R.
Negates the theory of deliberation and false implication and does not permit us to believe that the statement of both the [eye-witnesses, being blood-relation of the deceased,] on this fact was false.
17. It was next argued that the release of one of the co-accused i.e. Sher Dil during investigation and dismissal of prosecution application for his joining adversely reflects on the part of the prosecution and shows that the complainant has falsely added the accused and therefore, capital punishment on the basis of ocular testimony of prosecution witness unless corroborated independently cannot sustain. Meticulous examination of the record reveals that though the presence of co-accused Sher Dil with spade in, his hands was specifically mentioned in F.I.R., but he was released by the Investigating Officer on the basis of statement made by the Defence witnesses, however, it is also a matter of record that such letting of was not swallowed by the complainant party but an application, seeking joining of such let-off accused, was moved under section 193, Cr.P.C. With specific allegation that the. Investigating Officer released the co-accused Sher Dil after accepting bribe. The record further shows that Notices as well as coercive mode was adopted to serve co-accused Sher Dil but (despite) he did not appear. We believe that non- appearance of the accused Sher Dil was deliberate one because it cannot be believed that he was not aware with pending proceedings as both his sons were in custody and were being tried, however, ultimately the application under section 193, Cr.P.C. Of the complainant was dismissed through following order:- "This application under section 193, Cr. P. C. Has been filed for joining accused Sherdil who has been shown in column No.2 of the challan sheet by police. Notice of the application was given to Incharge D.A. And the proposed accused. The process server PC Ali Gul in his statement has stated that accused has shifted to some unknown place and was not residing in his house hence copy of notice was pasted at his door. The name of accused though appears in F.I.R. But there is no active role assigned to him, as such, at this stage the application is not maintainable and is hereby dismissed. However, the applicant will be at liberty to repeat the application in case some evidence comes on record during the trial of case against other accused. Sd/- 18- 1-2006" .
Since, we are fully conscious of the fact that even a deliberate default in the prosecution or administration of justice pertaining to the case of Sher Dil could, by no stretch of imagination, adversely affect the case of the appellant, but surely the appellant cannot be given benefit of such release or dismissal of the complainant's application under section 193, Cr.P.C. As the credibility of ocular evidence was never doubted or tested. The scrutiny of record reflects that the presence of co-accused Sher Dil with spade in his hand specifically find mentioned in the F.I.R., therefore, his release was rightly questioned. In the circumstances, the release of the co-accused. Sher Dil and dismissal of complainant's application under section 193, Cr.P.C., to our minds, could not adversely affect the case of the prosecution.
18. Now we will examine the case-law cited by Mr. Halepota in support of his argument. In the case of Atta Muhammad (supra) the apex Court has held as follows:-- "The maxim "falsus in uno, falsus in "ominibus" no doubt, has no universal application and that grain is to be sifted from chaff but it may not be possible in the case where the very P. W. On whose testimony conviction of an accused is maintained has earlier been held not to be worthy of credence so far as other accused charged with effecttive participation in the same occurrence was concerned. The acquittal of eight co-accused, particularly of Nazir, would adversely reflect on the credibility of the eye-witnesses. The acquittal of the eight co-accused will also show that the eye-witnesses were capable of implicating falsely innocent persons in the case or at least of exaggerating the number of the accused."
"The ocular evidence may be classified into three categories-- firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source."
Likewise in the case of Ahmed and others (supra) it was held:-- "Corroboration has to be looked for and found not only where the witnesses are interested but also in cases where by itself the ocular testimony is not so sound and doubt-free as to independently suffice for the conviction of the accused."
There is no cavil to the principles enunciated by the apex Court in the above referred cases i.e. The maxim "falsus in uno falsus in omnibus'. Has no universal application, and courts are under obligation to "sift the grain from chaff . Keeping in view this proposition of law we have examined the instant case but could not persuade ourselves to agree with the contention of Mr. Halepota that ocular evidence is partly unreliable and there being no corroborative evidence; therefore capital punishment could not sustain. We have discussed in detail the effect of acquittal of co-accused Moran as well as release of co-accused Sher Dil and are of the considered view that acquittal of co-accused Moran or release of co-accused Sher Dil could not adversely reflect on the ocular account rendered by the prosecution witnesses. As no portion of ocular evidence could be termed exaggeration or false implication. It is settled principle of law that conviction in a murder case can even be based on testimony of a single witness, if Court is satisfied that same is trustworthy and confidence inspiring as it is the quality of the evidence and not the quantity, which matters.
Reference can be made to the case of Niazuddin v. The State (2011 SCM R 725) and Muhammad Ehsan v. The State (2004 SCMR 1857).
19. Mr. Halepota also contended that the motive as spelt out appears to be a dispute over irrigating the land and no question to that effect was put to the accused in his 342, Cr.P.C. Statement for his explanation and consequently in terms of the dictum laid down by the apex Court in the case of Muhammad Shah (supra) such incriminating evidence cannot be used against the appellant for upholding conviction. No doubt that it is a settled principle of law that the accused is to be confronted in his 342, Cr.P.C. Statement with all incriminating pieces of evidence for his explanation and any incriminating piece of evidence which is not put to the accused in his statement under section 342, Cr.P.C. For his explanation, cannot be used against him for his conviction. However, in murder case where a motive claimed by the prosecution, is not proved in accordance with law, in spite of that this sole ground is not sufficient to discard the evidence which otherwise is credible and trustworthy. However, while careful reading of statement under section 342, Cr.P.C. Statement of appellant it is manifest that this contention is without any substance as the first question which was put to the appellant under his 342 Cr.P.C, statement for his explanation confronts the appellant with the motive in the following words:-- "You have heard the prosecution case/evidence. It has come in evidence that on 11-6-2005 at 07.00 PM you along with co-accused Moran, Ghulam Mustafa and Dil Murad armed with gun and accused Sher Dil armed with spade, made a quarrel with the complainant party over the irrigation of land. What you have to say?
20. It was contended that the recovery of crime weapon was shown from the house of the appellant which was allegedly effected on 29-6-2005 after 18 days of the incident and there is variation in the quantity of empty shells. Per counsel, after committing crime keeping of crime weapon at home was against human conduct and additionally the alleged crime weapon was not sent to Ballistic Expert. Perusal of the record reflects that the appellant was arrested on 20-6-2005 and during investigation the appellant agreed to produce weapon which was used in the commission of offence. Appellant led the Investigating Officer as well as mashirs Abdul Hafeez and Muhammad Sallah and effected recovery of SBBL from an iron box lying in his room. While scanning of evidence of mashir Abdul Hafeez reflects that not a single question was suggested that the crime weapon was not recovered from the house of the appellant. The relevant portion of the cross-examination is reproduced herein below:-- "On the day of arrest Subedar had not conducted the search of houses of accused. After nine days of arrest of accused police secured the gun, on pointation of accused. Accused Moran his 4/5 other brothers, his father and female folk reside in one and same house. Mashirnama of recovery of gun was prepared on 29-6-2005 at 04.00 p.m. The house of accused is situated on back side of otaq of Imam Bux. Police on 29-6-2005 brought accused in mobile and parked the mobile in the house of accused and called me and comashir. It is fact that I and comashir Muhammad Sallah are mashirs in all mashirnama of this case. It is fact that police had let off accused Sherdil. It is fact that my statement was recorded in 13-D of A. Ord. Case. I do not know whether both the accused have been acquitted by Court in 13.D of A.O. Cases. It is incorrect that there is dispute of complainant party with Nindwani and Chiliyani prior to this incident: It is incorrect to suggest that all the mashirnamas were prepared by police at P.S. and I and co-mashir had signed mashirnama at P. S. It. Is incorrect to suggest that I have deposed falsely due to relationship with complainant".
However, obviously crime weapons were not sent for the opinion of the Ballistic Expert nor any such report has been produced. Notwithstanding, we are of the view that ocular account of the occurrence against the accused connecting him with the offence is confidence inspiring, honest, trustworthy and is sufficient to uphold the capital punishment even if these pieces of evidence are kept out of consideration.
21. So far as the medical evidence is concerned, as per prosecution the appellant had used single barrel gun for the commission of this occurrence and the postmortem report produced by the Medical Officer as Exh.15/A corroborates with the ocular account by reflecting that the victim has sustained following injuries:-- Injury No:01:- 24 LTP wounds each measuring 1/2 c.m in diameter X cavity deep on right side of chest anteriorly, wound of entrance.
Injury No:02:- 22 LTP wounds each measuring 1/2 c.m in diameter X cavity deep on left side of chest anteriorly, wound of entrance.
Injury No:03:- 35 LTP wounds each measuring 1/2 in diameter X cavity deep on right side of abdomen, wound of entrance.
Injury No:04:- Two LTP wounds each measuring 1/2 in diameter X cavity deep on urinary bladder, wound of entrance.
Injury No:05:- 40 LIP- wounds each measuring 1/2 c.m. In diameter X muscle deep on right thigh anterior laterally, wound of entrance.
Injury No:06:- 05 LTP wounds each measuring 1/2 c.m in diameter X muscle deep on left thigh anterior medially, wound of entrance.
Injury No:07:- 04 LTP wounds each measuring 1/2 c.m. In diameter X muscle deep on the penis, wound of entrance.
Injury No:08:- One LTP wound each measuring 1/2 c.m. In diameter X muscle deep on right testis, wound of entrance.
Consequently we find that the medical evidence is fully in line with the ocular account.
22. In view of what has been discussed above, we find that the prosecution has succeeded in proving the case against the appellant beyond any shadow of doubt and the conviction under section 302(b), P . P . C . Recorded against him by the trial Court is maintained as a result Criminal Appeal No. 217 of 2009 filed by the appellant is dismissed and the main judgment of conviction and sentence is maintained. Murder Reference No.01 of 2010 is replied in affirmative and the death sentence awarded to the appellant by the learned trial Court is confirmed.
23. While parting, we feel compelled to take notice of the fact that acquittal of the accused Moran on sole words of Investigating officer that at time of arrest accused Moran was not found injured does not appear to be legal particularly when learned trial court judge himself believed the evidence as confidence inspiring to hold death penalty against present appellant. We are also of the view that prima facie such acquittal was not based on proper / judicial exercise of jurisdiction vested in the trial court therefore, we feel it a fit case for exercising powers, as provided under section 439 of the Criminal Procedure Code. A patent illegality and excess of jurisdiction by lower court (s), once has come to the notice, cannot be ignored. However, before proceeding further on such aspect of the matter, we feel it appropriate to serve the acquitted accused Moran with a show-cause notice to explain as to why the judgment of his acquittal be not set aside and the matter be referred back for retrial. Office is directed to prepare separate file with new number, as SUO MOTU Revision and issue show-cause notice to the accused Moran.