ABDUL HAMEED BALOCH, J. Through this common judgment we intend to dispose of Criminal Appeal No. 130 of 2022 and Murder Reference No. 01 of 2022.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 23rd April, 2020 (Ex: P/1-A) submitted by PW-1 Allah Bakhsh son of Lara Khan, that on 23rd April, 2020 at 9:15 a.m., accused Shah Mir, Sobat Khan, Roshan Khan and Muhammad Ramzan duly armed entered in the house of complainant. The accused Shah Mir and Roshan Khan armed with TT pistols tried to take Mst.
Fahmida, which was resisted by the family members, on which Shah Mir infuriated and made fire on Mst. Fahmida due to which she got injuries and fell down on the ground. It was further mentioned in the Fard-e-Biyan that as soon as they came forward the accused Shah Mir and Roshan Khan started indiscriminate firing due to which Khameesa, Muhammad Yousaf (brothers), Mst. Gramal (sister), Noor Ahmed and Abida (nephew and niece) received bullet injuries, while Kameesa and Gramal succumbed to their injuries. The motive alleged was to be matrimonial dispute. With these allegations FIR No. 56 of 2020 under sections 302, 324, 34, P.P.C. was registered with Police Station Kechi Baig, Quetta.
3. After registration of the case the investigation of the case was carried out and on completion thereof challan of the case was submitted before the trial court.
4. On receipt of challan the Additional Sessions Judge-II, Sariab, Quetta (trial court) read over charge to the appellants who pleaded not guilty to the charge and claimed trial. The prosecution in order to substantiate the accusation produced eight (08) witnesses. At the close of prosecution side the statements of appellants were recorded under section 342, Cr.P.C, in which they once again denied the allegation. The appellants neither opted to record their statements on oath as envisaged under section 340(2), Cr.P.C. or to produce evidence in their defence. On completion of trial the trial court vide impugned judgment dated 28th February, 2022, convicted the appellants in the manner: "---Consequently, accused persons Roshan Khan and Shah Mir are convicted under section 302(b), P.P.C. and sentenced to death on two counts, and to pay compensation in terms of 544- A, Cr.P.C. in the sum of Four Lac Rupees each to the legal heirs of deceased persons or to suffer six months' S.I. They shall be hanged by neck until they are died. While attempting to commit Qatl-i-amd of Mst. Fehmida, Noor Ahmed and Muhammad Yousaf, the accused persons are further convicted under sections 324, 34, P.P.C. on three counts and sentenced to suffer ten years rigorous imprisonment and to pay fine in the sum of Rs. 100,000/- each or to suffer six months' S.I. In addition to the aforementioned sentences the accused persons are also convicted for the hurt caused to the injured person, as provided by section 324, P.P.C., in the following manner:
(i) The nature of injuries of Mst. Fehmida are covered by section 337-F(iii), P.P.C., therefore, accused persons are liable to pay Daman to injured Fehmida in the sum of twenty thousand rupees each.
(ii) The injuries noted on the person of Muhammad Yousaf falls within the ambit of section 337- D, P.P.C. and 337-F(iii), P.P.C., as such the accused persons are liable to pay daman in the sum of twenty thousand rupees each as provided under section 337-F(iii) and for the injuries falling within the ambit of 337-D, P.P.C. and to pay 1/3 of Diyat each (as declared by federal government for the fiscal year 2021/2022).
(iii) The injuries noted to the extent of injured Noor Ahmed falls within the ambit of section 337- F(iii), P.P.C., therefore, accused persons are liable to pay Daman to injured in the sum of twenty thousand rupees each.
All the sentences awarded under sections 324, 34 to the accused persons shall run concurrently. Benefit of section 382-B, Cr.P.C. is extended in favour (-) accused persons. The execution of death sentence shall be subject to confirmation by the Hon'ble High Court of Balochistan. The accused persons are in judicial custody, be shifted to jail for execution of sentences...."
Hence the appellants have filed criminal appeal No. 130 of 2022, whereas the trial court has forwarded Murder Reference No. 01 of 2022 for confirmation of death sentence or otherwise.
5. Learned counsel for the appellants stated that the appellants have falsely been implicated in the instant case. The prosecution has assigned general role. No specific role assigned to the appellants. The alleged recovered pistol was sent to Arms Expert with delay without any explanation. The statements of the prosecution witnesses are contradictory to each other. The statement of no independent witness was recorded. The witnesses are interrelated; as such no reliance could be placed on their testimonies without independent corroboration. The judgment of the trial court is based on misreading and non-reading of evidence. The learned counsel placed reliance on following case laws: Ali Ahmad v. The State 2020 PCr.LJ 693 Muhammad Adnan v. The State 2021 SCMR 16 Khalid Mehmood v. The State 2021 SCMR 810 Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 Sufyan Nawaz v. The State 2020 SCMR 192
6. Conversely the learned Deputy Prosecutor General assisted by learned counsel for complainant strongly opposed the contention of learned counsel for the appellants and stated that the prosecution has proved its case by cogent, trustworthy and reliable evidence. The occurrence took place in broad daylight. The parties are related to each other. No question of false implication arises. The crime weapon was recovered and report of FSL is positive.
7. Heard and perused the record. In order to prove accusation the prosecution produced eight witnesses. The crime report was registered by PW-1 Allah Bakhsh, who produced murasila as Ex: P/1-A. The complainant in Ex: P/1-A narrated all the detail of occurrence. As per PW-1 on the day of occurrence he alongwith his family members was present in the house. The accused persons entered the house. Accused Shah Mir and Roshan Khan were having TT pistol in their hands and tried to take Fehmida. The complainant and his family members tried to appease, on which accused Shah Mir got infuriated and made fire on Mst. Fehmida due to which sustained injuries and fell down. The accused persons Shah Mir and Roshan made indiscriminate firing upon complainant and his family members due to which his brother Khameesa, sister Gramal, brother Muhammad Yousaf, nephew Noor Ahmed and niece Abida sustained injuries. Later on Khameesa and Gramal succumbed to their injuries. The motive for occurrence was dispute over Rish ta.
8. The prosecution case revolves on testimonies of ocular witnesses besides complainant PW-2 Noor Ahmed (injured), PW-3 Muhammad Yousaf (injured), PW-4 Mst. Fehmida (injured), medical evidence, recovery of pistol and empties and FSL report. All the ocular witnesses have stated the detail of the occurrence. PW-5 Ghulam Sarwar produced memo of recovery of pistol as Ex: P/5-A.
PW-6 Dr. Ayesha Faiz Police Surgeon produced medico legal certificates of deceased Khameesa and Gramal as Ex: P/6-A and Ex: P/6-B. The witness also produced MLCs of injured Fehmida, Muhammad Yousaf and Noor Ahmed as Ex: P/6-C to Ex: P/6-E. PW-7 produced memo of 9-empties, blood stained earth, blood stained trouser (shalwar) of Muhammad Yousaf and Noor Ahmed as Ex: P/7-A to Ex: P/7-C. PW-8 Amjad Mehmood SI the investigating officer produced FIR as Ex: P/8-A, site plan as Ex: P/8-D, FSL report of blood stained earth and trouser as Ex: P/8-F.
9. The eye-witnesses have furnished detail of the occurrence. The motive behind the occurrence as narrated in Ex: P/8-A is proved by the testimonies of ocular witnesses. The appellants entered the house of the complainant and his family in order to take back Fehmida, on resistance the accused made firing upon deceased and injured. Even otherwise the lack of motive or its weaknesses is never fatal to the case of prosecution if the case otherwise stand proved through direct evidence.
Reliance is placed on case Imtiaz Ahmed v. The State 2001 SCMR 1334, wherein it was held: "---It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case but must rest on the examination of entire evidence" in view of principles in Woolmingtin's case 1935 AC 462. Reference may be made to Talib Hussain v. State (1995 SCMR 1776), so also even in case of weak motive when there has been otherwise strong and reliable evidence, motive would not come in the way of the case of prosecution. Reference may be made to State v. Sobharo 1993 SCMR 585. It may also be observed that each criminal case is to be decided on its own peculiar facts and circumstances; as such the rule laid down in the earlier cases cannot be applied in the subsequent cases in the omnibus manner. Reference may be made to (i) Muhammad Nawaz Khan v. Mubarak Ali 2000 SCMR 1582 to 1585, (ii) State v.
Rab Nawaz PLD 1974 SC 87 and (iii) Ghulam Muhammad v. Allah Yar PLD 1976 SC 241. The facts of the cases cited by the learned counsel for the appellant are quite different and distinguishable to the facts of the case in hand. We accordingly find no merit in the appeal, which is hereby dismissed, maintaining the conviction and sentence awarded by both the Courts."
10. So far as the contention of learned defence counsel that the location of injured and witnesses was not shown in the site plan. The site plan is prepared only to explain or appreciate the ocular account on the record in the case. The site plan by itself is not a substantive piece of evidence nor can it take away the probative force of reliable ocular account. Mere omission to mention the position of ocular witnesses in site plan is not fatal to the case of prosecution. In case of Ali Sher (PLD 1980 SC 317), it was held by Honorable Supreme Court: "----The mere omission of the position of the prosecution witnesses in the site plan cannot per se lead to an irresistible inference that the witness were not present, when it is found that the presence of the witnesses at the time of the incident and at the place indicated would be natural in the circumstances. ----"
Reliance is also placed on case Mehr Ali v The State 1968 SCMR 161.
11. The defence counsel took stance that the dagger was not recovered. As per MLC injured Muhammad Yousaf sustained dagger injuries, further stated that Shah Mir and Roshan Khan made indiscriminate firing but no recovery was affected from appellant Shah Mir. The record transpires that the crime weapon TT pistol was recovered from the possession of appellant Roshan Khan. The prosecution has also secured nine empties of TT pistol. The report received from the expert is positive. It is settled principle of law that the recovery of crime weapon or empties is not a mandatory requirement of law. Same being corroborative piece of evidence only tends corroboration to the other piece of evidence. Reliance is placed on case Abbas Ali v. The State 2021 SCMR 349, wherein it was held: "5. Prosecution case is primarily structured upon ocular account furnished by Haji Muhammad Siddique (PW-1), Ali Sher (PW-2) and Khamiso Khan (PW-4); the last being injured during the episode; they have furnished graphic details of the occurrence without being trapped into any serious narrative conflict. Both sides, being part of the same household, questions of mistaken identity or substitution are the possibilities beyond comprehension. There is a remarkable promptitude in recourse to law by the witnesses that included an injured, medically examined under a police docket. Though the Investigating Officer failed to recover the weapons used during the occurrence, nonetheless, the failure does not tremor the prosecution case otherwise firmly founded on ocular account furnished by the witnesses who plausibly explained their presence at the crime scene. Inconsequential and directionless cross-examination mainly comprising bald suggestions vehemently denied fails to undermine the preponderance of prosecution case. Acquittal of co-accused with a role vastly distinguishable as well as inconsequential appears to be inspired by a judicial caution and as such does not adversely impact upon the integrity of the charge. View taken by the courts below being well within the remit of law calls for no interference. Petition fails. Leave declined."
12. Now divert to the objection of defence with regard to statement of related/interested witnesses.
Admittedly the occurrence took place in the house of complainant where the presence of witnesses is natural. The occurrence took place inside the house. The witnesses sustained injuries.
Their presence is not denied. The time, place and manner of the occurrence have not been disputed. The testimonies of ocular witnesses cannot be discarded merely that the witnesses had relation with deceased. The rule laid down by Honourable apex Courts in respect of evidence of interested witnesses is only rule of caution. Mere relationship of a prosecution witness to the complainant or other prosecution witnesses cannot render his evidence unreliable unless it is established that he had motive to falsely implicate the accused in the case. Nothing can be split out from the evidence of the witnesses to indicate that the witnesses had motive to falsely implicate the accused. Reliance is placed on case Zakir Hussain v. The State 1995 SCMR 1793.
13. The record depicts that the ocular witnesses in their deposition stated the detail of the occurrence. The parties are related to each other. The occurrence took place in the house of witnesses in broad daylight. The testimonies of eye-witnesses remained firmed. The defence failed to extract anything which could benefit the accused. The testimonies of ocular witnesses cannot be brush aside merely on the basis of non-recovery of dagger. By now it is a settle proposition of law that in general cases it is the quality not quantity of evidence which is to be considered while deciding the case. If the evidence of sole witness is confidence inspiring and trustworthy then the same can be relied upon for conviction. The witnesses had sustained injuries. It cannot be believable that the injured witnesses let the real culprit free and implicate innocent person. The learned counsel for the appellants could not point out any reason as to why the complainant and witnesses have falsely involved the appellants/convicts in the case and let off the real culprit and falsely involved the appellants without any rhyme or reason.
14. From the statements of eye-witnesses it can be inferred that all the accused persons caused injuries to prosecution witnesses and deceased. There is nothing on record to suggest that the appellants and absconding accused had not participated in the commission of offence. The appellants in furtherance of common intention attacked the deceased and injured witnesses. In Muhammad Akbar case (PLD 1991 SC 923) it was held: "---it is evident that a joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C.----"
15. As per record the trial court acquitted one accused Muhammad Ramzan from the charge. It appeared from the record that case of acquitted accused is distinguishable. There is no allegation that the acquitted accused caused any injury either to deceased or injured. Reliance is placed on case Augranzaib v. The State 2020 SCMR 616, wherein it was held: "5. Prosecution case is primarily hinged upon ocular account furnished by Haqnawaz (PW-1) and Munir Hussain (PW-2); former is father of the deceased whereas the latter is former's collateral; their close relationship notwithstanding, both of them have plausibly explained purpose of their presence at the crime scene; they had assembled to watch a Kabaddi match, annually held by tradition at a nearby mausoleum. To the extent of role assigned to the petitioner in the crime report, they remained consistent and straightforward; their failure qua the co-accused and complainant's recourse to a supplementary statement in order to nominate unknown assailants, though an embarrassing failure for the prosecution, however, does not tremor its mainstay. Assembly of the accused in the stated numbers, in a festivity, is a possible scenario; they appear to have been let off by the learned trial Court out of abundant caution, an option found by us most expedient in circumstances; their departure does not cast away the case against the petitioner, singularly blamed for the crime."
16. Learned defence counsel contended that the statements of prosecution witnesses are contradictory which could not be based for conviction. The contention has no force. It is now by a well settled that the minor discrepancies in the case of prosecution cannot render the testimonies of eye-witnesses. In Dilbar Masih case (2006 SCMR 1801), it was held: "---We find that the ocular account would also be supported by the medical evidence to the extent of sustaining the fire-arm injury by the deceased at the hand of petitioner and in these circumstances, the minor discrepancies and contradictions pointed out by the learned counsel for the petitioner would not be material either to effect the credibility of the evidence of eye- witness or create any doubt or dent in the prosecution case. ----"
17. The record further reveals that the appellants have sustained injuries. The appellants were arrested soon after the occurrence in injured condition. The complainant and witnesses had deliberately suppressed the injuries to appellants meaning thereby that the appellants had not told the whole truth. One nominated accused was acquitted. Therefore, in view and circumstances of the case the appeal is partly allowed. The conviction and sentence under section 302(b), P.P.C. is upheld and death sentence of appellants is converted to imprisonment for life on two counts with compensation of Rs. 400,000/-each (Rupees four hundred thousand) each under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased Khameesa and Mst. Gramal. In default thereof they shall further undergo six (06) months each. All the other sentences shall remain intact. All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. also extended in favour of the appellants.
The case law referred by the learned counsel for the appellants/convicts are distinguished.
Resultantly the Murder Reference No. 01 of 2022 is answered in negative.