ABDULLAH BALOCH, J.---This common judgment disposes of Criminal Appeal No.(S)134 of 2016 filed by the appellant Riaz son of Ismail and Criminal Jail Appeal No.(S)01 of 2017 filed on behalf of appellant Mukhtiar alias Mukho son of Daim through Superintendent Central Prison Mach. against the judgment dated 29th November, 2016 (hereinafter referred as "the impugned judgment") passed by learned Additional Sessions Judge Jhal Magsi at Gandawah (hereinafter referred as, "the trial Court"), whereby the appellants were convicted under section 302(b) read with 34, P.P.C. as Tazir for a period of twenty five (25) years' R.I. and to pay Rs.150,000/- as compensation to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. and in default thereof to further suffer six (06) months' S.I., with the benefit of section 382-B, Cr.P.C. The Criminal Revision Petition No. (S)12 of 2017 has been filed by the petitioner/complainant Ahmed Ali, for enhancement of the sentences awarded to the appellants.
2. Facts of the case are that on 28th November, 2015, the complainant Ahmed Ali son of Abdul Raheem lodged FIR No.30/2015 at Levies Station Jhal Magsi district Jhal Magsi, under section 302, P.P.C. stating therein that he is resident of Mohallah Mirzani Jhal Magsi, whereas his real brother Muhammad Ali son of Abdul Rahim is residing in Soomro Mohallah Jhal Magsi. On the day of occurrence at about 08.00 p.m. he went to meet his brother Muhammad Ali at this house and they both were sitting in a room, when all of sudden the accused Riaz Akbar both sons of Ismail and Mukhtiar alias Mukho entered into his house, who used to come there. The accused persons made Lalkar to his brother saying that he will not spare today and accused Riaz pointed pistol upon him (complainant), while accused Akbar and Mukhtiar alias Manjo caught hold his brother Muhammad Ali with hands, while his brother as trying to rescue himself and was resisting. In the meantime, the accused Riaz made firing on his brother, which hit him near his mouth and he fell down, whereafter in order to scare the complainant made an aerial firing. At this juncture, the accused Mukhtiar took the wallet of his brother and while escaping from the place of occurrence extended threats that in case of any hue and cry, he will also be killed.
3. Pursuant to above FIR, the investigation was entrusted to PW-4 Arbab Ali Magsi, Naib Tehsildar Thal Magsi/IO, who during investigation inspected the site, prepared site inspection memo and site map: sent the dead body to R.H.C. Jhal Magsi; took into possession two empties of pistol from the place of occurrence; recorded the statements of witnesses under section 161, Cr.P.C.; arrested the appellant Riaz and Mukhtiar, who were subjected to investigation. On completion of investigation, challan of the case was submitted in the trial Court.
4. At the trial. the accused Akbar was declared as proclaimed offender by the learned trial Court after initiating proceedings under sections 87 and 88, Cr.P.C. the prosecution produced four witnesses, whereafter the appellants were examined under section 342, Cr.P.C. The appellants neither recorded their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellants as mentioned above. Whereafter, initially the appellants Riaz and Mukhtiar jointly sent Criminal Jail Appeal No.(S)01/2017 before this Court and in the meantime, the appellant Riaz also filed Criminal Appeal No.134 of 2016 through his counsel, while Criminal Revision Petition No.(S)12 of 2017 has been filed by the complainant for enhancement of sentences awarded to the appellants.
5. Learned counsel for appellants contended that the impugned judgment suffers from misreading and non-reading of evidence; that only one alleged eye witness was produced by the prosecution, his statement is not only suffering from contradictions and dishonest improvements, but also lacking independent corroboration, thus being an interested witness, his testimony is not reliable to award conviction to the appellants; that no recovery of crime weapon has been effected from the possession of the appellants; that the prosecution has also failed to establish the motive behind the occurrence; that the impugned judgment is perverse and ridiculous and based on conjectures, surmises and improprieties, which is liable to be set aside.
6. On the other hand; the learned A.P.G. strongly opposed the arguments so advanced by the learned counsel for the appellants and argued that the prosecution has successfully established the case against the appellants by producing confidence inspiring evidence; that all the witnesses have corroborated each other on all material counts and despite lengthy cross-examination, their testimonies could not be shaken by the defence; that the learned trial Court after proper appreciation of evidence has rightly convicted the appellants for commission of offence through the impugned judgment, which is not open for interference by this Court.
7. Heard the learned counsel for parties and perused the record with their valuable assistance. In order to establish the charge, the prosecution has adduced the evidence of four witness. PW-1 is the complainant of the case, while PW-2 is the recovery witness of inspection memo, blood stained earth, empties, blood stained clothes. PW-3 has examined the deceased, while PW-4 is the I.O., who counted the steps taken by him during investigation. Before dilating upon ocular testimony, let firstly discuss the medical evidence. The prosecution has produced the medical evidence through PW-3 Dr. Hari Dass, Deputy District Health Officer, Jhal Magsi, who examined the deceased and found an entrance wound of firearm at right side of the lower jaw and a firearm wound at back of the head wound of exit. According to him when the deceased was brought before him, he has already dead. PW-3 has opined the kind of weapon as firearm. After examination PW-3 has issued MLC Ex.P/3-A, perusal of which confirms the unnatural death of deceased. The defence has also not disputed the unnatural death of deceased but pleaded false implication by the prosecution.
8. Adverting to the ocular testimony, suffice to state here that the prosecution in toto produced only one eye-witness of the occurrence i.e. complainant/PW-1 Ahmed Ali, who is not only the brother of deceased, but also claiming to have witnessed the crime directly, thus being sole eye-witness of the occurrence as well as the blood relation of deceased, we have analyzed his statement on all angles with utmost care and caution and finally found the same reliable. According to PW-1 his real brother Muhammad Ali was residing in Soomro Mohallah Jhal Magsi and on the said date he went to meet his deceased brother and at about 08.00 a.m. when he was sitting with his brother, the appellants Riaz, Mukhtiar and Akbar entered into the house and challenged his deceased brother that today he will not go spare. Hence, the appellant Riaz pointed pistol upon him (complainant), while the appellant Mukhtiar and the absconding accused Akbar caught hold of the deceased by hands, but the deceased was resisting and was trying to rescue him from the clutches of the accused, due to which the appellant Riaz made firing upon his deceased brother which hit on his mouth and he fell down, while the appellant Riaz also made an aerial firing to scare him (complainant) and further threatened that in case of making hue and cries, he will be murdered and thereafter, the accused escaped from the scene of occurrence. Thereafter, the people gathered, hence he went to Police Station and lodged the FIR. This witness was also cross- examined at sufficient length, but the defence has failed to de-track this witness from his line.
9. Admittedly, the incident had taken place at about 8.00 a.m. and the FIR was lodged promptly at about 10.00 a.m., while all the three accused persons were nominated in the FIR. The prompt lodging of FIR has ruled out the concept of deliberation or consultation.
10. So far as the contention of learned defence counsel that the conviction to the appellants, suffice to observe here that it has been statement of this sole eye-witness being interested is unsafe to award remained the consistent view of the Superior Courts that in murder cases conviction can be awarded or maintained merely on the basis of statement of sole eye-witness even though having blood relation with the deceased. The concept behind such view is due to the fact that once blood relation has been murdered in his presence, he will never substitute the innocent persons with the real culprits letting the murderers without any prosecution. If the Court once has observed that the, statement of sole eye-witness is faultless, unimpeachable and confidence-inspiring conviction can be granted and maintained provided that there are no other circumstances, which could be fatal to the prosecution case or cause a doubt in a prudent mind as to the guilt of the appellant.
The Court has further to see the credibility and the quality of a witness and the quantity of witnesses does not matter. Mere fact that the complainant is the brother of the deceased, is no ground to hold him interested witness or to brush-aside his testimony declaring the same untrustworthy. Reliance in this regard is placed on the case of Muhammad Ehsan v. The State, 2006 SCM R 1857. The relevant portion is reproduced herein below: "... This Court has time and again held that even testimony of single witness if found to be reliable, confidence-inspiring and unimpeachable same would be sufficient to base conviction.
It is not necessary that in each and every case there should be more than one witness for the purpose of basing conviction considering that fact also that is not the quantity of evidence but the quality of evidence on the basis of which conviction is to be based. Facts of the case-law cited are quite different and distinguishable to the facts of the instant case, therefore, is inapt to facts and circumstances of instant case, hence it would not help the appellant in any case, considering also that in the instant case medical evidence has fully corroborated the ocular testimony of P.
W.4 whose testimony was unimpeachable and confidence-inspiring.
"...the ocular testimony of P. W.4 Mst. Khatun Bibi is unimpeachable and confidence-inspiring and her veracity could not be discredited in the lengthy cross-examination. Mere fact that she was widow of deceased would not itself be sufficient to hold that she was interested witness considering the fact that she had no enmity with the appellant or co-accused. [BOLD ADDED] Similar view has been taken by the Hon'ble Supreme Court in the case of Khizar Hayat v. The State 2011 SCMR 429. The relevant portion is reproduced herein below: "There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances. In this regard reference can be made to the cases of Khadim Hussain v. State (2010 SCMR 1090), Ashfaq Ahmed v. State (2007 SCMR 641), Shoukat Ali v. The State (PLD 2007 SC 93) and Muhammad Mansha v. The State (2001 SCMR 199). This Court in Iqbal alias Bala v. The Slate (1994 SCMR 1) wherein it has held that merely the friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. Reference can also be made to the case of Muhammad Ehsan v.
State (2006 SCMR 1857) wherein while considering the plea raised by accused that evidence of widow of deceased could not be relied upon because she was interested witness being related to deceased, this Court held that mere fact that she was widow of deceased would not by itself sufficient to held that she was interested witness as she had no enmity with the accused and even if deceased had enmity with accused it would not have any serious effect upon the credibility and reliability of the testimony of widow. Learned High Court as well as the trial Court deeply considered this aspect of the case and declined to accept the plea." (BOLD ADDED)
11. Adverting to the contention of defence counsel that the motive behind the occurrence has not been established by the prosecution, it is worth mentioning that the motive is the essential component of a crime, even the cases in which the motive has not been established or proved or shrouded in mystery or was not alleged. convictions have been passed and maintained by the apex Court. In the case of Muhammad Latif alias Tifa v. The State 2008 SCM R 1106, it has been held that, "Be that as it may, it is settled law that 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 no alleged conviction was maintained and absence of motive was not taken as a mitigating circumstance even." In this regard reference can also be made to the case of Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others, PLD 2008 Supreme Court 416.
12.Considering, the contention of defence counsel that since no recovery of crime weapon has been effected from the possession of appellants, thus no case is made out against them. In this context it is necessary to mention here that the non-recovery of a crime weapons is immaterial in the case in hand. As the incident had taken place on 28th November, 2015 and the appellants soon after the commission of crime were absconded, while the appellant Riaz was arrested on 17th January 2016, meaning thereby that the appellant had sufficient time to dispose of or eliminate the crime weapon in any manner. Besides, the recovery of crime weapon can only be a piece of supporting evidence, whereas the prosecution has to prove its case independently, hence mere non- recovery of crime weapon is no ground to discredit or disbelieve the entire prosecution case.
Reliance in this regard is placed to the case of Sikander Teghani alias Muhammad Teghani v. The State, 2016 YLR 1098, whereby it has been held that where the charge is proved by other direct, natural and confidence inspiring evidence then non-recovery of the crime weapon was not held to be fatal even. The Hon'ble Supreme Court in case Muhammad Nadeem alias Deemi v. State, 2011 SCM R 872, held that, "... the recovery of crime weapon in a criminal case is not at all material. It can only be a piece of supporting evidence. If other evidence goes to prove the case independently, the recovery is not essential at all."
13.After thorough perusal of evidence, we have come to the conclusion that the prosecution has proved its case against the appellants without any shadow of doubt. The case of prosecution is based on ocular evidence supported by medical evidence and the statements so recorded by the witnesses are in line and corroborated each other, as such the learned trial Court after proper appreciation of evidence had rightly convicted and sentenced the appellants in accordance with law and the impugned judgment is not open for any interference by this Court.
14.So far as the quantum of sentences awarded to the appellants are concerned, suffice to observe here that three accused persons have been nominated in the crime, out of whom the appellants have been awarded conviction, while one of the accused is absconding, whose plea has not yet been recorded. Thus, the trial Court has rightly awarded 25-years sentences to the appellants and their sentences are not required to be enhanced under the circumstances of the case. distinctively and as required under the law. After issuance of the proclamation, the next step comes i.e. attachment of the property of the proclaimed offenders under Section 88 of the Code, which reads as: "88. Attachment of property of person absconding: (1) The Court issuing a proclamation under section 87 may at any time order the attachment of any property, movable or immovable or both, belonging to the proclaimed person.
(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the Sessions Judge within whose district such property is situated.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(a) by all or any two of such methods, as the Court thinks fit.
(4) if the property ordered to be attached is immovable, the attachment under this section shall, in the case of land-paying revenue to the Provincial Government, be made through the District Officer (Revenue) in which the land is situated, and in all other cases-
(e) by taking possession; or
(f) by the appointment of a receiver; or
(g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or
(h) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of livestock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide, the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under Order XL of the Code of Civil Procedure, 1908.
(6-A) if any claim is preferred to or objection made, to the attachment of any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.
(6-B) Claims or objections under subsection (6-A) may be preferred, or made in the Court by which the order of attachment is issued or, if the claim or objection is in respect of property attached under an order endorsed by a Sessions Judge in accordance with the provisions of subsection (2) in the Court of such Magistrate.
(6-C) Every such claim or objection shall be inquired into by the Court or Magistrate in which it is preferred or made.
(6-D) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (6-A) may within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.
(6-E) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(7) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the Provincial Government but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under subsection (6-A) has been disposed of under that subsection, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit."
6. From the bare perusal of the above statutory provision, it is evident that the purpose of the same is to force the offender to appear before the trial Court for facing trial. The above provision of law has equipped the trial Court with sufficient power to force an absconder to join the proceedings before it. According to subsection 4(g) of section 88 of them Code, the trial Court is empowered to issue an order in writing prohibiting the payment of rent or delivery of property to the proclaimed offender or to anyone on his behalf. Nowadays, a Pakistani cannot enter in a transaction through banking channel if he does not possess a CNIC issued by NADRA. The trial Court may issue such directions to the NADRA for digitally impounding or blocking the CNIC of absconding accused. After blocking or digitally impounding of CNIC, the person will become helpless and he cannot open or operate a bank account, obtain a passport and he also face hardship in so many other daily routines. If the details of CNIC is not available with the trial Court, the same can be obtained by issuing directions to NADRA Authorities through investigating officer, and it may be arranged through prosecuting agency by approaching the Family Tree of proclaimed offender from the data bank of NADRA. It is worthwhile to point out that the aim and object of subsection 4(g) of section 88 of the Code is to strangulate the financial resources to reach to the absconding accused, as such the trial Court may attach/stop salary of a proclaimed offender, if he is a government employee or serving in any corporation or private entity, and may also direct the state bank to frieze the bank accounts of a proclaimed offender until he surrenders himself before the law. It is not out of place to mention that all these actions against an accused cannot be taken unless a proper proclamation under section 87 of the Code is issued against him, and whenever the absconding accused appear before the trial Court and offer some explanation, and give assurance to face trial, the trial Court should not be languid in restoring his financial resources especially his salary and bank accounts.
7. The upshot of the above discussion is that every possible effort should be made by the trial Court as well as police to procure the appearance of an absconding accused before the trial Court. In the instant matter, the anxiety of the petitioner is that the accused nominated in his FIR are still at large. Neither they are arrested by police nor they have surrendered themselves before the trial Court. As per comments/ statements of official respondents belonging to police department, they are trying diligently for the arrest of the accused nominated in the FIR lodged by the petitioner and the counsel for the petitioner is satisfied with such statements. In spite of that the official respondents, especially the SHO concerned is directed to pace up his efforts while trial Court is required to do the needful in this respect.
8. With these observation, the instant petition is disposed of with no order as to cost. Copy of this order be sent to the trial Court through concerned Sessions Judge, as well as to SHO concerned for compliance.