' ROOH-UL-AMIN KHAN, J.---Both the appellants were tried, found guilty, as such were convicted by the trial Court/Sessions Judge Bannu, under section 302(b), P.P.C. To imprisonment for life, each, and to pay a fine of Rs.1,00,000 each, as compensation in terms of section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to undergo 6 months' S.I. Each, in case FIR No.68, dated 23-6-2004, registered 'under Sections 302/34, P.P.C. At Police Station Hayed District, Bannu.
Benefit of section 382-B, Cr.P.C. Has been extended in favour of the appellants.
2. The appellants-convicts have filed instant Criminal appeal against their conviction while complainant Din Muhammad has filed connected Cr.R. No.33-B/2012, titled, "Din Muhammad v.
Reham Dil Khan and others" for enhancement of sentence of the respondents-convicts. As both, the appeal as well as criminal revision petition, are stemming out of the same judgment of the trial Court, hence, are going to be disposed of through this common judgment.
3. On 23-6-2004 at 0850 hours, complainant Din Muhammad made a report in Police Station Haved, that on the fateful day he along with his son Mir Saeedullah and brother Mir Nawaz Khan, was shifting manure/dung on their donkey, from their village to their fields, situated in Moza Fateh Khan Khel. When they reached their fields, in the meantime, accused Kaboot Khan along with his sons Faridullah, Reham Dil Khan, out of whom accused Kaboot Khan was empty handed while Faridullah was armed with a Kalashnikov and Reham Dil with 12 bore rifle, emerged there. Accused Qaboot Khan order his sons/co-accused, to kill, on which they resorted to firing with intention to commit their murders, as a consequence whereof, Mir Saeedullah son of the complainant was hit and fell on the ground. After the occurrence, the accused decamped from the spot. Motive for the occurrence, as stated by the complainant is that some six months prior to the occurrence, accused Faridullah was fired at by some body, for which, he was suspecting Mir Saeedullah (deceased).
Besides the complainant, the occurrence is stated to have been witnessed by Amir Nawaz, his brother. The injured was being shifted to Police Station, but he succumbed to the injuries on his way.
4. After completion of investigation, challan was put in Court against the appellants, where they were formally charge sheeted to which they pleaded not guilty and claimed trial. To prove the guilt of the appellants, prosecution examined eleven witnesses and thereafter closed its evidence.
Statements of the appellants were recorded under section 342, Cr.P.C., wherein, they denied the prosecution allegations and professed their innocence. Appellant Faridullah also recorded his statement on oath under section 340(2), Cr.P.C. And produced Momin Khan as defence witness, who also deposed on oath in favour of appellant Faridullah. On conclusion of trial, they were convicted and sentenced as mentioned in preceding Para.
5. Learned counsel for the appellants argued that learned trial Court has not properly appreciated the evidence available on the file and the impugned judgment is based on mere surmises and conjectures; that the prosecution evidence is suffering from material contradictions and discrepancies creating doubt in a prudent mind qua the mode and manner of the incident; that the complainant has not established his presence at the spot at the time of incident; that no recovery of crime empties has been effected from the alleged crime venue; that medical evidence is in direct conflict with the ocular account as well as the site plan prepared at the pointation of the alleged eyewitnesses; that presence of donkeys on which the complainant party had allegedly loaded the manure have not been shown in the site plan; that not a single scratch has been caused to the donkeys and the eyewitnesses also remained unscathed, which is unbelievable keeping in view the role of indiscriminate firing attributed to the appellants by the complainant, which makes the presence of the eye-witness at the spot, highly doubtful; that the prosecution case is pregnant with doubts, benefit of which is to be extended to the appellants.
6. Conversely, learned counsel for the complainant supported the impugned judgment and contended that it is a daylight occurrence in which the appellants have directly been charged for effective firing on the deceased; that the incident has been reported with promptitude; that parties being co-villagers are well known to each other, hence, the question of mistaken identity does not arise; that the ocular account furnished by the complainant is straightforward, trustworthy and confidence inspiring; that medical evidence corroborates the version of the complainant; that the blood-stained earth and last worn blood-stained clothes of the deceased taken into possession by the I.O. Were sent to FSL, report of which is in positive which further strengthen the prosecution version; that appellants remained fugitive from law for sufficient long time for which they have not furnished any plausible explanation, which proves their guilty conscious, hence, they have rightly been convicted. In support of the criminal revision petition, learned counsel in lukewarm manner contended that prosecution has proved the guilt of the respondents-convict up to the hilt hence, they deserve the condign punishment provided for the offence.
7. We have heard the extensive arguments of the learned counsel for the parties and have gone through the record.
8. As per FIR, the occurrence took place on 23-6-2004 at 0800 hours. The dead body of the deceased was shifted to the Police Station and report was lodged by complainant at 0850 hours i.e. Within 50 minutes of the occurrence. The distance between the crime spot and Police Station, as shown in the FIR, is 3/4 Kilometers and complainant Din Muhammad, being father of the deceased, might have consumed sometime at the spot for collecting his reflexes, because his young son was shot dead in front of his eyes. Similarly, for arranging Cot and vehicle for shifting of the deceased then injured from the spot` to the Police Station, would have also taken some time, thus, in the circumstances, the FIR has been reported with promptitude with all the necessary details of the incident: eliminating the possibility of concoction or deliberation on behalf of the prosecution. It is also borne out from the record that both the parties are 'co-villagers inter se and were well known to each other prior to the occurrence. It is also alleged in the FIR that some 6 months prior to the occurrence appellant Faridullah was fired at by someone for which the accused party was suspecting the deceased. In this state of affairs, substitution of the appellants for the actual assailants is unbelievable as one cannot expect from a real father of advance age to substitute the real culprits with that of appellants, which is otherwise a rear phenomena. Reference can be made to case titled "Mawas Khan v. The State (PLD 2004 SC 330), wherein it was held that there appear to be no reason whatsoever for eyewitness to substitute the real culprits with that of appellant in absence of any serious enmity, which otherwise is a rear phenomena. In case of "Saeed Akhtar v.
The State" (2000 SCM R 383) it was ruled that family of deceased and eyewitness had no iliwill against the accused and had no reason to substitute them for the real culprits. Similar view was reiterated in case titled "Muhammad Iqbal v. The State" (PLD 2001 SC 222).
9. After registration of case, during spot inspection, bloodstained earth from the place of the deceased has been secured by the Investigating Officer. Similarly, the last worn bloodstained garments of the deceased have also been taken into possession during investigation of the case vide recovery memo. Exh.R/1. These bloodstained articles have been sent to the FSL for Serologist opinion. The Analyst report affirmed that it was a human blood and of the same group, which proved that the deceased was done to death on the same place as alleged by the complainant in his report. Thus, the crime spot has been fully established from these material pieces of circumstantial evidence. Similarly, this fact is also established from the autopsy report of the deceased that he had been done to death with fire-arms.
10. Perusal of the FIR divulges that co-accused Kaboot Khan is charged for commanding "Lalkara", whereas the appellants being his real sons have obliged him. The role of effective firing has been assigned to appellants-convicts. As stated earlier that FIR has been registered with promptitude where both the appellants, who are the sons of absconding co-accused Kaboot Khan, are directly charged for effective firing at the deceased. According to the FIR, besides complainant Din Muhammad, one Mir Nawaz has also witnessed the occurrence. During trial, complainant has been examined as (P.W.8), however, as manifest from the record, during trial, PW Mir Nawaz died, as such his statement could not be procured. In the circumstances, complainant Din Muhammad is the solitary eyewitness of the incident, who has furnished the ocular account. In his examination-in- chief he has reiterated the same facts as mentioned in his report. A look over his statement would depict that he has been subjected to lengthy cross-examination; but he stood firm to his stance and successfully passed the test of cross-examination despite the fact that he at the time of recording his statement was aged about 71/72 years and so much so his statement was recorded after seven years of the occurrence. No material contradiction or any dent could be made by the defence testimony. Rather, the place of occurrence and other particular of the incident were further supplemented through his cross-examination. His statement squarely corroborates his report which is further corroborated by circumstantial evidence on material particulars through recoveries of bloodstained earth, bloodstained last worn clothes of the deceased and postmortem report of the deceased.
11. No doubt, complainant is the real father of the deceased, but his mere close relations will not discard his testimony on the sole ground of his relationship. Conviction can be based on statement of a witness, who is closely related to the deceased, provided same is confidence inspiring; and intrinsic worth of the same rings true, and satisfies conscience of the Court. By now it is settled law that merely on the ground of inter se relation, the statement of a witness cannot be brushed aside.
The concept of "interested witness" has been discussed in numerous judgments of the apex Court.
In case titled "Iqbal alias Bala v. The State" (1994 SCM R 1), it was elaborately discussed and held that friendship or relationship with deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principle for acceptance the testimony of even interested witnesses are set out in case titled "Nazir v. The State" (PLD 1962 SC 269). The statement of deceased's minor son aged about 15 years was accepted in "Khalil Ahmad's case (1976 SCM R 161), as he was not personally involved in any act of enmity with the accused and his statement was consistent with other evidence. Similar view has been reiterated by the august Supreme Court in case titled, "Zulfiqar Ahmad and others v. The State" (2011 SCM R 492). In criminal cases, what is more essential for the Court to see is the veracity and credibility of the witnesses and not their numbers, because it is the quality and not the quantity of the evidence which matters. In the present case the statement of the complainant Din Muhammad is straightforward and confidence inspiring which is corroborated by circumstantial evidence and medical evidence.
Though there may be some minor discrepancies in his statement, but that would not be fatal for the prosecution case, as he has been examined after a long period of seven years because during this period the appellants remained fugitive from law, hence, in such like situation minor discrepancies in his statement are natural. No major contradiction could be found in the statement of the complainant/eyewitness which may negate the basic edifice of the prosecution story. It is settled law that those contradictions in the prosecution evidence are considered as fatal, which totally negates the prosecution case. Mere superficial discrepancies, occurring in the statements of the PWs, which are otherwise natural one, would not be considered as fatal. Rather, such like discrepancies in the statements of the PWs are inherent proof of their truthfulness that they have come forward with natural account of the events.
12. Admittedly, conviction in any murder case can be based on the testimony of a single witness,-4f the Court is satisfied that the witness is reliable. In other words, the emphasis is on quality of evidence and not on quantity. Thus, the testimony of the complainant, which is straightforward, reliable and confidence inspiring cannot be thrown away merely on the ground that he is solitary witness of the incident. The credence of statement of solitary witness has already been examined by the Hon'ble Supreme' Court in a number of cases. In this context reference can be made to "Mali v. The State" (1969 SCM R 76), "Muhammad Ashraf v. The State" (10971 SCMR 530) "Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State" (1971 SCM R 659 and "Muhammad Mansha v. The State" (2001 SCM R 199). The principle qua basing conviction on the statement of testimony of a solitary witness has been reiterated by the apex Court in case titled, "Farooq Khan v.
The State" (2008 SCM R 917).
13. In the instant case, undisputedly, the appellants had absconded for a long period of 8 years and thereafter were arrested and then the PWs including the complainant were examined. After the passage such a long time, the complainant was subjected to lengthy and searching cross- examination by a skillful hand, thus, creeping of minor discrepancies in his statement being simple and rustic villager, who was never used to such tricky questions nor was mindful about the nature and consequences of answers thereof. The Courts are never supposed to decide the matter in a mechanical manner by taking such discrepancies as a tool to dislodge a genuine case. Rather, the Courts are supposed to go in depth of the evidence and assess it at the touchstone of natural course of events and human conduct in normal pursuit of the society by scrutinizing its intrinsic worth and if comes to the conclusion on their own assessment that such an occurrence had in fact taken place, it becomes an obligation to redress the grievance of aggrieved party.
14. The complainant has given specific motive for the occurrence that six months prior to the incident someone had fired at appellant Faridullah for which he was suspecting the deceased. This fact has been reiterated by him in his statement. Besides there is no other enmity between the parties, which may prompt the complainant to falsely implicate the appellants. Though, motive is established, however, it is not the requirement of law to prove the same by all means and convicts are not entitled to acquittal merely for non-proving the motive, if otherwise, their guilt is established through 'cogent, coherent, trustworthy and confidence inspiring evidence of unimpeachable character. In case titled "Muhammad Ilyas v. The State" (PLD 2001 SC 333), it was held that motives do not play an effective role when premeditated and cold blooded murder is committed and established by irrefutable evidence. Non-proof of the motive cannot be a ground for discarding the unimpeachable evidence. In case titled, "Mirza Khan and another v. The State" (2005 SCM R 1110), the Hon'ble Supreme Court ruled that proof of motive is not a legal requirement in the presence of other convincing and unimpeachable ocular version. While deciding the case titled, "Waris Khan v.
The State" (2001 SCM R 387), the august Supreme Court laid down the following principle:-- "Where the eyewitness account was worthy of credence, unimpeachable, confidence inspiring and acquisition was established beyond shadow of doubt, weakness of motive or its absence or whether alleged but not proved, would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstance".
From the above referred dictum of the august Supreme Court, it is clear than crystal that it is not the duty of the prosecution to establish a motive as to why the offence has been committed by the accused. However, where there is a clear proof of motive for the crime that lends additional support to the prosecution case. In support of the above reliance may be placed on case titled, "Talib Hussain v. The ,State" (1995 SCM R 1776), "State v. Sobharo" (1993 SCM R 585) and "Mushtaq Ahmad v. Muhammad Siddique" (PLD 1975 SC 160).
15. As regards the argument of the learned counsel for the appellants that no crime empty has been recovered from the alleged crime spot, is of no help for the prosecution because recovery of crime weapon or empties is not a mandatory requirement of law, but is a circumstantial piece of evidence, which tends to corroborate the other pieces of evidence, i.e. Ocular account, motive, medical evidence and any other circumstance, which may deem relevant. Absence of such corroborative evidence would not be fatal in the presence of direct credible evidence. The argument of the learned counsel for the appellants that donkey has not shown in the site plan and no scratch has been caused to the donkey in the incident, is flimsy and unpersuasive. A glance over the site plan, would reflect that the deceased has been shown at point No.1, proceeding towards north east, behind the donkey (not shown in the site plan), while the accused have emerged from the north-west side. In case of firing on deceased at point No.1, the bullets must travel to east-south, therefore, the donkey would not come in the line of fire.
Similarly, the target of the accused party was the deceased and not the . Donkey. Even otherwise, the site plan is not a substantive document to be used to contradict the ocular account and cannot be given preference over the direct evidence of truthful eyewitness of the occurrence.
Reliance may be placed on case titled "Abdur Raul v. The State" (2003 SCM R 522). Not showing the donkey in the site plan is an omission and mere lapses on the part of Investigating Officer, which would cast no doubt on prosecution case and lend no benefit to the accused. It is golden principle of criminal justice that the Court should keep in view all the facts and circumstances of the case, and if its judicial mind is satisfied, it should record the conviction, though there might have been some technical lapses on the part of the Investigating Agency or prosecution. In this regard, wisdom may be derived from a celebrated judgment of august Supreme Court in case titled, Jafar Ali v. The State 1998 SCM R 2669.
16. Another stance of learned counsel for the appellants was that medical evidence contradicts the ocular account and the site plan, prepared at the pointation of the complainant, because the injuries on the person of the deceased, as reflecting from the autopsy report, do not fall in line of firing of the appellants from the points allotted to them in the site plan. Learned counsel argued that as per site plan the accused have been shown at the right side of the deceased, while one entry wound is on the back left lateral side to the vertebrae (Spinal Cord), while the other entry is on the left buttock lateral side, which is unbelievable. While discussing the site plan, in the, preceding Para, the position of accused and deceased has been clarified and in such eventuality, the injuries would be caused from left back side. Besides, the argument of the learned counsel has no force because keeping the human nature, the deceased after hearing the bolting alarm of loading the guns and sensing the fear and danger situation, must change his position at the time of firing because he being a human being must move and not remain a statue. It is also a settled law that medical evidence is just corroborative piece of evidence which does not identify the assailant nor can it over weigh the straightforward and confidence inspiring ocular account, Q furnished by eye-witness. In this respect reference may be made to case titled "Zakir Hussain v. The State" (2008 SCM R 222) and "Saeedullah Khan v. The State" (1986 SCM R 1027).
17. For what has been discussed above, the learned trial Court has properly appreciated the evidence available on the file and was justified R in convicting the appellants. Now the question which requires determination would be the quantum of sentence to be awarded to the appellants- accused. Admittedly, three accused are charged for the murder of single deceased. The deceased has sustained multiple firearm injuries on his person and it is not discernable from the available evidence as to shot of which of the three accused proved fatal, which would be a mitigating circumstance in the prosecution case and in the circumstance the condign punishment provided for the offence would not be a step justified in law. Thus, he learned trial Court was justified by sentencing the appellant to imprisonment for life. The learned counsel for the petitioner- complainant failed to make out a case of enhancement S of sentence. Resultantly, the appeal as well as the connected criminal revision petition, stand dismissed.