' FAROOQ ALI CHANNA , J.---The instant appeal has been filed against the judgment dated 21-2- 2006 passed in Sessions Case No,103/2002, Re. State v. Gul Hassan and others, culminating from FIR No,32/2002, Police Station Bhiria, under Sections 302, 34, P.P.C., by the learned Sessions Judge, Nausharo Feroze. While convicting the appellants under Section 302(b), P.P.C. Sentenced them for imprisonment for life with fine of Rs,100,000 each and in default thereof to undergo R.I. For six months more. The appellants were extended benefit of Section 382-B, Cr.P.C.
2. The brief facts giving rise to file the instant appeal are that on 1-5-2002 complainant Muhammad Uris lodged FIR at Police Station Bhiria City regarding the murder of his brother Nawab, who during night of incident was asleep along with his another brother Ali Akbar at wheat crop Dera in the land of Master Baig Muhammad. The incident was narrated to him by All Akbar that he woke up on cries and saw on torchlight that accused Rajib was causing hatchet blow on the neck of Nawab, while accused Gul Hassan was slaughtering him, and accused Paryal Buriro and Nimano caught hold of his legs and arms. The complainant on receiving such information rushed along with other witnesses at the place of incident and informed his nek mard Haji Ali Akbar at Kandiaro at morning, who advised the complainant to lodge FIR. The complainant thereafter went to Police Station and lodged the FIR. The motive behind the incident was the allegation of "Karap" alleged by the appellant Gul Hassan that deceased Nawab had developed illicit terms with his wife.
3. The police visited place of wardat, shifted dead body to hospital, seized bloodstained earth and 'Rilhi' and prepared such mashirnama. During investigation the appellants were arrested and on the pointation of accused Gul Hassan a bloodstained 'chhuri' and his blood-stained shirt were recovered, whereas on the pointation of accused Rajib a blood-stained hatchet was recovered.
After completing the investigation I.O. Submitted the challan and the trial Court after recording the evidence and hearing the arguments of learned Counsel of both the parties convicted and sentenced the appellants, as stated hereinabove.
4. To substantiate the prosecution case, prosecution examined Ali Akbar, the brother of deceased who was the sole witness of incident. This eye-witness in his evidence has fully supported the case of prosecution by giving the detail of incident that he and his brother were asleep on wheat dera, he woke up on cries of his brother Nawab flashed torch and saw accused Paryal holding the legs, accused Nimano holding the arms while accused Rajib inflicting hatchet blow on neck and accused Gul Hassan slaughtering the neck of deceased Nawab with "Chhuri". He raised cries, on which the culprits ran away, thereafter he saw his brother lying dead, he came at village by raising cries which attracted his uncle Muhammad Mithal and nephew Muhammad Ramzan, to whom he narrated the incident. His brother complainant Muhammad Uris also reached there. They all went, towards Dera of wheat, remained there till morning, thereafter he and his brother complainant Muhammad Uris came to their nek mard Haji Ali Akbar Memon at Kandiaro disclosed him the incident who advised to lodge the FIR. Accordingly, complainant Muhammad Uris lodged the FIR.
His statement was recorded by police. This witness Akbar was cross-examined at length, during cross-examination he has admitted that village Solangi was near to Dera, but none from Solangi village came on commotions. During cross-examination he has given further detail of incident.
However, he has denied the suggestions of defence Counsel that he was not sleeping at dera along with his deceased brother and in fact some unknown persons while committing theft of wheat caused murder of deceased Nawab. He has also denied the false implication of appellants.
5. The learned counsel for the appellants have argued that the sole evidence of real brother of deceased is insufficient for recording the sentence in a heinous offence of capital punishment without independent corroboration; as per prosecution case the appellants/accused were identified by complainant on torchlight which is weakest source of identification and is not reliable.
In support of contentions the learned Counsel have relied upon a case reported as Ayub v. The State (1994 PCr.LJ 1057) wherein it has been held that "identification of accused in torchlight was not considered as sufficient piece of evidence".
6. Learned A.P.G while controverting the submissions of learned counsel for the appellants has contended that although solitary evidence of P.W. Ali Akbar being inspiring confidence is sufficient to prove the prosecution case, the same has also been corroborated by medical evidence, so also recovery of incriminating weapons and circumstantial evidence. Learned A.P.G. Has further argued that the delay in lodging of FIR has been explained plausibly. In support of his contention he has relied upon the case reported in 2006 SCMR 179.
7. So far case against the appellants Rajib, Paryal and Nimano is concerned, the learned Counsel for appellants have contended that besides the weak evidence and doubt in the prosecution case against the appellant Gul Hassan, the case of appellants Rajib, Paryal and Nimano is on better footing as that of case against the appellant Gul Hassan, as no motive is alleged nor reliable corroborative evidence inspiring confidence has been led by the prosecution against the said appellants.
8. On the contrary, the learned A.P.G. Has refuted that the evidence of P.W. Ali Akbar against the appellant Rajib is corroborated by medical evidence as incised wound of 20 c.m. Must be resulted from hatchet blow beside the slaughter with "Chhuri", that appellant Paryal and Nimano have also been nominated in FIR with specific role and without their active participation, it might have not been possible for the appellant Rajib to cause hatchet blow and appellant Gul Hassan for slaughtering the deceased Nawab, as such prosecution has also proved the case against the appellants Rajib, Paryal and Nimano.
9. Admittedly, there is solitary ocular evidence of P.W. Ali Akbar, in this case. It is pertinent to say that Article 17 enshrines the well-recognized maxim that "Evidence has to be weighed and not counted" if the sole evidence of eye-witness is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof, as the Court while deciding the criminal case is concerned with the quality and not quantity of the evidence necessary for proving or disproving a fact. In this respect it would be conducive to refer Article 17(2)
(b) of Qanun-e-Shahadat Order, 1984, which reads as under:-- "17. Competence and number of witness.---(1) The competence of :a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one mart and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
10. The only condition for the competency of a witness is that he must qualify the requirement of Article 3 of Qanun-e-Shahadat Order, 1984, which provides that all persons shill be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. However, in some cases depends upon the circumstances of each case, the Court as a conscious measurement should seek corroborative evidence about the guilt of accused.
11. In the instant case the evidence of P.W. Ali Akbar against the appellant Gul Hassan is confidence inspiring, finds corroboration from recovery of bloodstained shirt and blood-stained "Chhuri" used by appellant Gul Hassan while slaughtering deceased Nawab. Both these articles were sent to chemical examiner, who submitted positive report. The recovery of (Chhuri) and blood-stained shirt on the pointation of Gul Hassan is supported by evidence of I.O. Of the case who recovered both the articles and prepared such mashirnama of recovery in presence of mashirs, they have also supported the prosecution case. The learned Counsel for the appellants have raised plea that the above articles were recovered after one week of the incident and there was no need to retain weapons i,e,, "Chhuri" and hatchet used in the commission of the above crime and blood- stain shirt of appellant Gill Hassan. In support of their contention they relied upon the case reported as Akhtar Ali v. The State (2008 SCM R 6). The contention raised bears legal force if recovery would have been effected with delay after the arrest of accused/appellants. In this case the recoveries were made on the same day of the arrest of accused/appellants, so far retaining the incriminating weapon is concerned, it is the prosecution case that after committing crime, the appellants had fled away, so it cannot be said that the appellants had an opportunity to destroy the incriminating evidence as such with profound respect to the observation given in the above-referred citation, the same is not applicable to instant case. Next contention raised by the learned Counsel for the appellants was that the identification of appellants on torchlight being a weak type of evidence was sufficient to create doubt in prosecution case, this aspect of case could only be favourable to accused/appellants if the accused is stranger and not seen/known previously by the witnesses, whereas in the instant case appellants and the P.W. Ali Akbar are related and known to each other prior to this incident as appears from the prosecution case that appellant Gul Hassan leveled the allegation of "Karap" against deceased Nawab the brother of P.W. Ali Akbar, who was also offering for 'faisla' to appellant Gul Hassan, in such case, identification by eye-witness even on dim light could not have posed any serious problem, leaves no question of mistaken identification.
Regarding the contention of learned counsel that the name of eyewitness is not mentioned in inquest report, they have relied upon the case reported as Mazhar Ali v. The State (NLR 1999 Criminal 199). I have perused the inquest report, which bears no column requiring the name of eye- witness, hence the above-referred citation is also not applicable to the facts of the instant case.
The delay of 12 hours, which according to learned Counsel for appellants is sufficient to create doubt in prosecution case, is immaterial as the complainant has explained the delay which under the tradition of our society seems plausible that before lodging of FIR the complainant party usually approaches their nek mards. Besides above the motive behind the incident is the allegation of "Karap" leveled by appellant Gui Hassan against deceased of his illicit terms with the wife of appellant Gul Hassan. The said motive has not been rebutted during the cross-examination to any witness. As such the prosecution has proved the charge of murder of deceased Nawab against the appellant Gul Hassan by bringing on record reliable and cogent evidence.
12. While discussing the evidence against the appellant GuI Hassan, ocular testimony has been found inspiring confidence and reliable as the same has been corroborated by medical evidence, recovery of "Chhuri", blood-stained shirt and circumstantial evidence, the said corroborative evidence is missing in the case against the remaining appellants. The Courts while considering the ocular testimony have to sift the grain from chaff, as the false involvement of relatives and family members of real accused is the tradition in society particularly of our Rural Areas.
13. The case of the appellants Rajib, Paryal and Nimano is distinguishable from the case of appellant Gul Hassan. Per prosecution case, the allegation against the appellant Rajib is that he caused hatchet injury on the neck of deceased Nawab, but the medical evidence is not in consonance with the solitary ocular testimony therefore, it will be just and proper to refer the medical evidence/post mortem showing the injury on the person of deceased as under:-- "1. One incised wound measuring 20 c.m. x 5 c.m. Vertebral column deep, extending from right side below angle of lower jaw to left side below the angle of lower jaw cutting anteriorly, skin, adorns aple, trachea, esophagus, both carattud arerim, present on front of neck at the level of adorns apple.
14. The incised wound measuring 20 c.m. Is symmetrical on both sides extending from right side of lower jaw to left side of lower jaw, which cannot be caused by blow of hatchet and if such injury is caused by blow of hatchet, the same would be more than 5 c.m. Deep. Furthermore, if the injury was caused with hatchet, the incised margin would have been crushed and cervical bone fractured due to force application of weapon used. Per postmortem report cervical bone was intact and healthy, the symptoms discussed above are missing in the opinion of medico-legal officer as such the injury on the neck of deceased resulting from slaughter with "Chhuri", the said injury is specifically attributed to the appellant Gul Hassan. The allegation against Nimano is that he caught hold the arms of deceased whereas appellant Paryal caught hold legs of deceased, but postmortem report does not disclose anywhere the marks of abrasion or violence on arms or legs of deceased. Furthermore, except the blood on the shirt of appellant Gul Hassan, no blood even small drop was found on shirts of other appellants though per prosecution all the appellants with more or less distance to some extent were standing near/around the deceased. The motive behind the incident was also specifically alleged against appellant Gul Hassan as such the prosecution evidence brought on record was insufficient for recording conviction to appellants Rajib, Paryal and Nimano.
15. For the reasons discussed above, I have come to the conclusion that the prosecution has proved the charge of murder of deceased Nawab against appellant Gul Hassan without any shadow of reasonable doubt, whereas the charge against appellants. Rajib, Paryal and Nimano is not free from doubt, therefore, while maintaining the conviction and sentence awarded to appellant Gul Hassan, by way of abundant caution set aside the conviction and sentence of appellants Rajib, Paryal and Nimano by extending them benefit of doubt. The appeal is allowed partly in the above terms.