SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Nawaz son of Haq Nawaz, resident of Village Surag, Tehsil Pindigheb, District Attock, appellant, was involved in case FIR No,368, dated 6- 11-2008, offence under section 302, P.P.C., registered at Police Station Pindigheb and was tried by Mr. Muhammad Jahangir Mir, learned Additional Sessions Judge, Pindigheb, District Attock. The learned trial Court seized with the matter in terms of judgment dated 2-9-2009 convicted the appellant under section 302(b), P.P.C., and sentenced him to death as Ta'zir. The appellant was also burdened to pay Rs,1,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months'.
2. Feeling aggrieved by the judgment of the learned trial Court, Muhammad Nawaz/appellant impugned the same by way of filing Criminal Appeal No,52-J of 2009, whereas the learned trial Court forwarded Murder Reference No,110/RWP of 2009 for confirmation of death sentence inflicted upon Muhammad Nawaz/convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial Court, therefore, these are being disposed of through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PF) lodged on the complaint (Exh.PG) of Muhammad Anwar son of Shah Nawaz, caste Awan (P.W.10) is that he is permanent resident of Suraj, however, in order to earn livelihood he along with other family members and bhateja namely Muhammad Arif had shifted to Village Magian in the haveli of Malik Nisar Ali Khan and started cultivation. Muhammad Nawaz son of Haq Nawaz, caste Awan, resident of Suraj, chacha of the complainant, had been residing with him four months prior to the occurrence. The complainant had a son namely Mumraz Khan aged 13/14 years and a daughter. On 6-11-2008 in the morning Mumraz Khan son of the complainant and Arif bhateja of the complainant went to school while his wife along with daughter went towards the fields. The complainant after informing his chacha Muhammad Nawaz about an urgent work went towards Suraj village. At deegarweal when the complainant reached Magian stop he met with his chacha Muhammad Nawaz, who was perturbed while his clothes were having blood staining. On the query of the complainant, his chacha told him that he was going towards Mianwali for personal work. The complainant rushed towards his house and when he reached there he called for his son Mumraz Khan, however, there was no response from the other side. The complainant went inside the southern room of the house and saw that dead body of Mumraz Khan smeared with blood was lying on the bed. The head bones were exposed while stains of blood were also present on the wall. When the complainant went to other room of the house he saw that his bhateja Muhammad Arif was sitting in a corner of the room in a state of fear. On asking bhateja of the complainant told him that Muhammad Nawaz had committed the murder of Mumraz Khan with hatchet and due to fear he had concealed himself over there.
Motive behind the occurrence as disclosed in the crime report was that a quarrel had taken place between Mumraz Khan son of the complainant and Muhammad Nawaz and due to that grudge the accused while using hatchet had committed murder of Mumraz Khan.
4. After deputing Muhammad Ayub son of Sajwal Khan, Ghulam Sarwar son of Shah Nawaz, both Awan by caste and residents of Suraj to safeguard the dead body, the complainant was going to report the matter to police, however, on way he met with Muhammad Munir, ASI (P.W.12) and made his statement, which was reduced into writing (Exh.PG), and the same was transmitted to Police Station through Ishfaq 599/C for registration of formal FIR. Thereafter, the Investigating Officer reached the place of occurrence, inspected the dead body, drafted application for post mortem examination (Exh.PH), prepared inquest report (Exh.PI) and transmitted the dead body to mortuary for autopsy-escorted by Muhammad Khan 467/LHC. From the spot the Investigating Officer secured blood through cotton and made into sealed parcel vide recovery memo. Exh.PC. He also secured pillow (P-3), one chaddar (P-4), another chaddar of blue colour (P-5) all bloodstained vide recovery memo. Exh.PG. The Investigating Officer prepared rough site plan of the place of occurrence (Exh.PJ) and recorded statements of the prosecution witnesses under section 161, Cr.P.C. After the post mortem examination last worn clothes of the deceased qameez (P-1) and shalwar (P-2) were produced before the Investigating Officer, which he took into possession vide recovery memo. Exh. PA. On 10-11-2008, the Investigating Officer summoned Bashir Ahmed Awan Draftsman (P.W.5), who on the pointing out of the P.Ws., took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PB and Exh.PB/1), which was made part of the file. On 12-11-2008, the appellant was arrested and the Investigating Officer obtained his physical remand. During the course of interrogation, on 16-11-2008, the appellant after making is Closure led to the recovery of bloodstained hatchet (P-6), which was taken into possession vide recovery memo. Exh.PE. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PK).
5. During the course of investigation having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of Session enrouted through Illaqa Magistrate as provided in terms of section 190(2), Cr.P.C. The learned Additional Sessions Judge, vide order dated 19-3-2009 formally charge sheeted the appellant to which he pleaded not guilty and claimed trial.
6. Prosecution in order to substantiate its case produced as many as twelve (12) prosecution witnesses. Muhammad Anwar (P.W.10) is the complainant of the case while occular account has been furnished through the statement of Muhammad Arif (P.W.11). Muhammad Nawaz, ASI (P.W.8) had chalked out formal FIR while Bashir Ahmed Awan Draftsman (P.W.5) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Muhammad Munir, ASI (P.W.12).
Dr. Muhammad Muneeb Siddiqui, Medical officer (P.W.9) had conducted post mortem examination upon the dead body and observed following injuries:-- "(1) 1 large lacerated wound at forehead from middle to right lateral side, with broken skull bone.
Wound was deep to the brain and brain matter was flowing towards outside over head and bed sheet at which the body was lying. Wound was measuring 14 cm x 5 cm with depth of 5 cm to the brain matter. Corresponding skull bone was badly damaged and destroyed.
(2) 1 incised wound at left side of fore head just beside the first big wound. Wound was of L shape measuring in full length 5 cm x 2 cm with depth of 1 cm.
(3) Incised wound at the right ear measuring 01 cm x 0.4 cm.
(4) 2 incised wounds at the right temporal region just beside the right ear measuring 2.5 cm x 01 cm and 2nd 02 cm x 01 cm with depth of 0.5 cm. Bleeding over the wound was positive.
(5) 1 incised wound at the right eyebrow measuring 2.5 cm x 01 cm with depth of 0.8 cm.
(6) 2 incised wounds at the right sides lower mandible at the right side of chin with fractured mandible measuring 02 cm x 01 cm and 2nd 02 cm x 01 cm with the depth of 0.5 cm.
(7) 1 Lacerated wound at the right side of head just beside the big wound with under lying fractured skull, measuring 02 cm x 01 cm."
After conducting the postmortem examination, the doctor rendered the following opinion:- "After conducting the P.M. Examination I am of the opinion that the death of deceased occurred due to the above mentioned injuries caused by badly tortured resulting into head injury, leading to haemorrhage badly destroying the brain matter and shock. The injuries were ante-mortem in nature and same were incompatible with life under ordinary circumstances in normal course of life and were sufficient to cause death.
The probable duration between the injuries and death was not more than 30 minutes while between death and post mortem was about six to seven hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. On 21-4-2009, learned Deputy District Public Prosecutor gave up Muhammad Ayub P.W. Being unnecessary while Tariq Mehmood and Muhammad Khalid, P.Ws., were given up on 28-5-2009 and Muhammad Riaz and Muhammad Yaqoob, P.Ws., were given up on 27-4-2009, all being unnecessary. Vide his separate statement recorded on 26-8-2009, after tendering in evidence the report of Chemical Examiner with regard to hatchet (Exh.PL), report of Serologist regarding hatchet (Exh.PM), report of Chemical Examiner regarding cotton stained with blood (Exh.PN) and report of Serologist in respect thereof (Exh.PO), learned ADPP closed the prosecution evidence.
8. The appellant was also examined under section 342, Cr.P.C., wherein he tendered certain documents in his defence, however, he opted not to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "I have been falsely involved in this case. The complainant wanted to alienation of my land in his favour. I am also owner of plot which is in possession of complainant, the complainant also wanted to alienation of said plot in his favour. I am innocent."
9. After hearing the arguments advanced by learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond any shadow of doubt, resulting into conviction of the appellant in the above stated terms.
10. Learned counsel for the appellant while opening his arguments submitted that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and the same even otherwise is in sheer violation to the evidence available on record. Learned counsel contended that the occurrence is stated to have taken place on 6-11- 2008 at deegarwela while the matter was reported to the police at 8-45 p.m. Whereas inter se distance between the place of occurrence and the Police Station was 18-KMs, hence the FIR was lodged after due deliberations and consultations. Learned counsel contended that the complainant is not eye-witness of the occurrence, and his statement is based upon hearsay.
Further contended that Muhammad Arif (P.W.11) is the alleged eye-witness of the occurrence, however, he was of tender age at the relevant time and there is no other independent witness to supplement his stance. It was argued that there are glaring contradictions in his statement, which squarely shatter his testimony. Further argued that as no specific locale/seat of injuries was mentioned in the crime report, therefore, the medical evidence is of no avail. Further submitted that recovery of hatchet from an open place after ten days of the occurrence is of no legal consequence. Learned counsel submitted that the motive alleged in the FIR could not be substantiated during the course of trial. Further contended that the appellant was 60 years of age and he was having no reason to have committed the murder of his close relative without any cause. Learned counsel finally argued that if the prosecution version is presumed to be true even then as the sole eye-witness of the occurrence is of tender age, therefore, death sentence in this particular case is harsh and the appellant is entitled for alternative sentence provided under the statute.
11. Learned Additional Prosecutor General, on the other hand, vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that the appellant is duly named in the crime report with specific role, who according to prosecution version is sole proprietor of the occurrence with the allegation of taking life of a young boy. Further contended that it was a broad daylight occurrence, therefore, there was no question of misidentification of the assailant. Learned Law Officer argued that although Muhammad Arif (P.W.11) was of tender age, however, during the course of trial he remained in the hands of defence for a lengthy cross-examination, however, nothing adverse to the prosecution version could be detected out of his statement. Further argued that medical evidence is in line with the occular account. It was submitted that after his arrest, hatchet was also recovered from the appellant, which was submitted to the office of Chemical Examiner/Serologist and respective reports of the concerned quarter are positive. Learned Additional Prosecutor General vigorously contended that there was no reason with the complainant to have falsely substituted the appellant, who happens to be his real uncle, in place of real culprit(s). Moreover, during the course of investigation the appellant was found guilty as such his name was placed in column No,3 of the report prepared under section 173, Cr.P.C. It was finally argued by learned Law Officer that the appellant took life of a young guy without any rhyme or reason, therefore, normal penalty of death is in exact proportionate to the act committed by him as such the appeal in hands merits dismissal.
12. Arguments advanced pro and contra have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.
13. It is very unfortunate occurrence in which a young guy aged about 13/14 years has been murdered in a very brutal/reckless manner and according to post mortem examination the doctor observed as many as seven injuries on vital parts of his body. It is further significant aspect of the case that while lodging the crime report Muhammad Anwar (P.W.10) unfortunate father of the deceased guy had involved the appellant, who happens to be his uncle (chacha), as sole proprietor of the occurrence.
As per prosecution version the occurrence had taken place on 6-11-2008 at deegarwela while the matter was reported to the police at 8-45 p.m. The inter se distance between the place of occurrence and the Police Station being 18-KMs, the delay in lodging the crime report is not fatal to the prosecution version, at all. In order to substantiate its case the prosecution has led evidence qua occular account, medical evidence, recovery of hatchet, reports of Chemical Examiner/Serologist, as well as, investigation.
14. There is no denial to this fact that statement of Muhammad Anwar (P/W.10) with regard to mode and manner of occurrence is based upon hearsay and he had only seen the appellant at bus stop in a perturbed condition while his clothes were having stains of blood while Muhammad Arif (P.W.11) is the sole witness of the occurrence. However, requirement of law in criminal cases is quality of evidence and not the quantity. There is no hard and fast rule qua number of the prosecution witnesses to prove the prosecution story. In Qanun-e- Shahadat Order, 1984, (section 134 of the Evidence Act, 1872) Article 17 deals with number of witnesses, provisions of which are reproduced here in below for ready reference:-- "17. Competence and number of witnesses.--- (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 Qur'an 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 man and two women, so that one may remained 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."
A bare perusal would reveal that the language as employed in Article 17(1)(b) is free from an ambiguity and no scholarly interpretation is required. The provisions as reproduced here in above of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact.
15. As far as minor age of Muhammad Arif (P.W.11) is concerned, no doubt at the time of making his testimony his age was 10 years, however, before recording his statement, his mental capacity to depose before the court was determined by the learned trial Court while putting him as many as eight questions and after satisfying itself with the answers, the learned court opted to record his statement. He while giving minute details of the occurrence remained consistent about the prosecution version that it was the appellant, who had assaulted upon Mumraz Khan deceased son of the complainant and inflicted number of injuries by hatchet. The conduct of P.W.11 to conceal himself in the corner of another room of the house in a state of fear also seems to be natural. Fact also remains that Muhammad Arif (P.W.11) remained in the hands of defence for a considerable time and his statement consists of six pages, however, while scanning the material we have failed to locate even a single crack, which could be of much importance in order to believe that it would not be safe to rely upon his statement.
16. Fact whether conviction can be recorded on the basis of solitary statement has been deliberated by the superior courts in number of judgments. In a salutary judgment in the case of Muhammad Ashraf v. The State (1971 SCMR 530), the august Supreme Court of Pakistan had given the following guidelines:-- "Penal Code (XL V of 1860), S. 302--- Murder--- Conviction under S. 302 can be based on evidence of a solitary eye-witness if found truthful and natural and not interested in deceased or on inimical terms with accused."
Further in another landmark judgment in the case of Allah Bakhsh v. Shammi and others (PLD 1980 Supreme Court 225), the following principle was laid down:- "----[Murder-case]---Conviction---Conviction, even in murder cases, held, can be based on testimony of a single witness if Court satisfied as to witness being reliable---Emphasis, held further, laid on quality of evidence and not on its quantity.---"
Similar view was affirmed in the cases of Mali v. The State (1969 SCMR 76) and Farooq Khan v. The State (2008 SCMR 917).
In the Indian Jurisdiction in the case of Takdir Samsuddin Sheikh v. State of Gujaraat and another (2012 SCMR 1869), following principle was laid down:-- "---Evidence---Single witness, evidence of---Conviction on basis of such evidence---Scope--- Court could and might act on the testimony of a single witness provided he was wholly responsible---No legal impediment existed in convicting a person on the sole testimony of a single witness---Where there were doubts about the testimony, the court could insist on corroboration-- -Test to remove such doubt was whether the evidence had a ring of truth, was cogent, credible and trustworthy or otherwise---Emphasis was to be laid on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses, therefore, it was open to a court to fully and completely rely on a solitary witness and record conviction."
17. There is no denial to the fact that both the prosecution witnesses are closely related to the deceased but at the same time it has been the consistent view of the superior courts of the country that mere close relationship of the prosecution witness with deceased or the complainant could not discard his testimony if otherwise the same is trust worthy, appealing to reason and corroborated by an independent circumstance. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ijaz Ahmad v. The State (2009 SCMR 99) and Talib Hussain and others v. The State and others (2009 SCMR 825).
18. As far as medical evidence in this case is concerned, the same fully lends support to the prosecution version. While appearing in the witness box Dr. Muneeb Siddiqui Medical Officer (P.W.9), who had conducted postmortem examination upon the dead body of deceased had affirmed the seat/locale of injuries on the person of deceased. As per doctor the injuries on the person of deceased were result of sharp-edged weapon. Even otherwise the locale, as well as, number of injuries inflicted by the appellant straightway imprints his mind set that in order to ensure death of the deceased, he had chosen most vital part of his body. Moreover, while rendering opinion the doctor had observed that all the injuries on the person of deceased were sufficient to cause death in ordinary course of nature, which had happened in this case.
19. After arrest of the appellant the Investigating Officer had recovered 'hatchet (P-6)', which was sent to the office of Chemical Examiner/Serologist and as per respective reports of the concerned quarter (Exh.PL and Exh.PM), the same was stained with human blood. Hence, the prosecution version qua recovery is in line with other features of the prosecution witnesses.
20. As far as motive in this case is concerned, nevertheless in ordinary cases once any motive is set forth in the crime report the prosecution is under bounden duty to prove the same but at the same time if otherwise the case of the prosecution is proved from direct evidence of occular account finding full corroboration from medical evidence and other independent/attending circumstances, the conviction can be recorded. Respectful reliance in this regard is placed on the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in the case Musa v. The State (2008 SCMR 997); wherein their Lordships in the august Supreme Court of Pakistan have held as under:-- "----Reappraisal of evidence--- Absence of motive--- Not a mitigating circumstance--- Motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext; what to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken as a mitigating circumstance".
In the case of Raza Khan v. The State (1998 PCr.LJ 530), it has been held:-- "----Motive---Inadequancy or weakness of motive would not lend any support to the accused when direct ocular evidence is available in the case."
Similarly in the case of Muhammad Asif alias Assa v. The State (2009 YLR 498), it has been held:-- "----Evidence---Motive---Motive is the state of mind of an accused which can be formed even at the spur of moment---Mere lack of proof, non-proof or even absence of motive in a case is of no consequence, as it is only supporting evidence."
21. We also find much weight in the contention of learned Additional Prosecutor General that the complainant is unfortunate father of the deceased and the appellant also being closely related to him, he was having no or previous enmity to have substituted the appellant in place of real culprits.
Fact also remains that during the course of investigation the accusations levelled against the appellant in the crime report were found correct and his name was placed in column No.3 of the report prepared under section 173, Cr.P.C.
22. No doubt the weapon used by the appellant 'hatchet' is as lethal as any firearm. Moreover the number, as well as, locale/seat of injuries on the person of deceased imprint the intent of the assailant and unveil his reckless conduct, who by inflicting numerous injuries on the person of deceased had committed his murder. The normal sentence for culpable homicide amounting to murder is death. The prosecution witnesses were not tested on the touchstone of Tazkia-tul- shahood, therefore, the learned trial Court was justified to convict the appellant under section 302(b), P.P.C., and sentenced him to death as Ta'zir.
23. Upshot of the above discussion is that the prosecution has substantiated its case through leading evidence by the most natural witness of the occurrence, who remained coherent on salient features of the prosecution version. The medical evidence fully substantiates the prosecution case especially the locale of injuries and time between death and postmortem examination. Recovery of bloodstained 'hatchet' and positive reports of Chemical Examiner/Serologist in respect thereof fully establish the prosecution case and there is nothing on record to show even a glimpse in order to arrive at the conclusion that it was a case of substitution. Hence, by any stretch of imagination, the prosecution case is fully proved beyond iota of reasonable doubt. Resultantly, Criminal Appeal No,52-J of 2009 filed by Muhammad Nawaz/appellant is DISMISSED IN TOTO, as a consequence whereof; the impugned judgment passed by learned trial Court on 2-9-2009 is maintained/upheld.
24. Murder Reference No,110/RWP of 2009 forwarded by the learned trial Court in terms of section 374, Cr.P.C, for confirmation of sentence of death inflicted upon Muhammad Nawaz/convict succeeds, which is answered in AFFIRMATIVE.
Death sentence is CONFIRMED.