SAHIBZADA ASADULLAH, J.- Through this single judgment, this court is intending to decide the instant appeal as well as connected Cr.R No. 139-P/2024 titled "Mairaj Hussain vs Musa Khan etc." as both the matters are arising out of one and the same judgment dated 31.05.2023 passed by the learned Additional Sessions Judge, Kurram delivered in case FIR No. 50 dated 14.03.2021 under sections 302/324/34 PPC read with section 15-AA at police station Central Kurram, whereby the appellants Musa Khan and Essa Khan were convicted and sentenced as under: - "Under section 302(b) PPC to rigorous imprisonment for life for each of the deceased i.e. two times each and to pay compensation amounting to Rs.5,00,000/- (rupees five lac) each to the legal heirs of the deceased within the meaning of section 544-A Cr.PC recoverable as arrears of land revenue and in default of payment, they shall further undergo suffer simple imprisonment for six months each.
"Under section 324/34 PPC for attempting at the life of the complainant to rigorous imprisonment for five (05) years each and to pay a fine of Rs.50,000/- (rupees fifty thousand) each and in default of paym ent, they shall further undergo suffer simple imprisonment for one month each. All the sentences shall run concurrently. Benefit of section 382-B Cr.PC was extended in favor of the appellants."
2. Facts forming the background of the instant case are that on 14.03.2021, complainant Mairaj Hussain reported the matter to the effect that he alongwith his father Surat Khan and brother Asif Khan, after performing Ish a prayer, was coming home from the mosque, when in the meanwhile, his uncles Musa Khan, Suleman, Essa Khan and Naseem Khan, who were already standing there duly armed with deadly weapons, started firing at them as a result of which his father Surat Khan was hit and fell down on the ground; that he and his deceased brother Asif Khan, being empty handed, took shelter in their Bhaitak, but the accused chased them and started firing at them as a result of which his brother Asif Khan was hit and died on the spot whereas, he received firearm injury; that the occurrence was witnessed by many people and women folk; that motive behind the occurrence was stated to be the property dispute; that the accused were charged for the commission of the offence hence, the present FIR.
3. Complete challan was submitted to the court. Provisions of section 265-C CrPC were complied with and, the appellants were charge sheeted to which they pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 11 witnesses. After closure of prosecution evidence, statements of accused were recorded under section 342 CrPC, wherein they posed innocence, however, neither they wished to be examined on Oath as required under section 340 (2) Cr.PC. nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial convicted and sentenced the appellants vide the impugned judgment, hence, instant appeal.
4. Arguments heard and available record scanned through.
5. The shocking incident claimed the lives of two innocent persons and, it also led to an injury to the complainant. The injured alongwith the dead body was shifted to the hospital where the matter was reported.
The injury sheets and inquest reports were prepared, the dead bodies were sent for post mortem examination whereas, the complainant was examined by the doctor and, his medico-legal certificate was prepared. The investigating officer visited the spot and, on pointation of the eye witness, prepared the site plan. During spot inspection, blood was collected from the respective places of the deceased and, the investigating officer also collected 16 empties of 7.62 bore from in front of the mosque, where the deceased Surat Khan was done to death and, also from inside the Bhaitak where the complainant received a firearm injury and, the deceased Asif Khan was killed. From inside the Bhaitak, the investigating officer collected 92 empties of 7.62 bore and also 08 spent bullets were taken into possession. The investigating officer also took into possession a hammer, which was used for breaking the door and, he also found the door of the Bhaitak broken. Not only this. but the investigating officer also collected electric bulbs installed on the wall of the mosque and, he also took into possession the same from point "C", which was installed outside the Bhaitak. The appellants were arrested on 17.03.2021. Their physical custody was requested and, it was on their pointation that two Kalashnikovs were recovered. The same were sent to the firearms expert alongwith the collected empties, a report was received where some of the empties got matched with the recovered weapons whereas, the remaining empties, did not match. The appellants were committed for trial and, on conclusion of the trial, were convicted and sentenced vide the impugned judgment.
6. The learned trial court took into consideration, the evidence on file and, after application of its judicial mind, it found the appellants responsible for the tragic incident and, as such, they were convicted and sentenced vide the impugned judgment. This court is to see as to whether the approach of the learned trial court is based on reasons and, that whether the learned trial court was not influenced from the manner in which the tragic incident occurred. True that two innocent persons lost their lives whereas, the complainant received a single firearm injury, but equally true that this court is to see as to whether these were the appellants who killed the deceased and, that the prosecution succeeded in bringing home guilt against them. In order to avoid miscarriage of justice, this court deems it essential to scan through the record and, to re-consider the evidence on file, so that the innocent could be rescued and guilty could be punished.
7. The points for determination before this court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the complainant was present at the time of occurrence and, he received injury in the same transaction; as to whether it was the complainant, who reported the matter; that whether the medical evidence supports the case of the prosecution and, as to whether the prosecution succeeded in bringing home guilt against the appellants.
8. In order to appreciate the peculiar circumstances of this case, we deem it essential to go through the statements of the witnesses and, to take into consideration the circumstances of the case, so that the guilt or innocence of the appellants could be determined. In order to appreciate the manner in which the incident occurred, we deem it essential to go through the statement of the complainant and, to assess as to whether he was present at the spot at the time of occurrence and, that he received injury in the same transaction. The complainant was examined as PW-10, he explained the circumstances in which the unfortunate incident occurred and, he also explained the manner in which the dead bodies were collected from the spot, shifted to the hospital and reported the matter. The complainant was cross examined on material aspects of the case with an attempt to extract something favourable from his mouth, to the appellants, so we are anxious to know as to whether the defence could succeed in creating dents in the case of the prosecution and, that whether the credibility of the witness could be questioned, which would confirm his absence from the spot at the stated time. The witness was lengthy cross examined, he tried to explain the circumstances in which the incident occurred and, he tried to convince his presence on the spot.
As the unfortunate incident occurred near the house of the deceased and, as the deceased alongwith the complainant had gone to perform lsha prayer, so it was after performing prayer that the unfortunate incident occurred. Record tells and so highlighted by the investigating officer that the deceased were fired at where one of the deceased received firearm injuries, he fell to the ground and, breathed his last whereas, the other deceased and the complainant succeeded to run from the spot, entered into the Bhaitak and closed the door from inside, but the accused followed, the door was broken with the help of a hammer and, the deceased was fired at, inside the Bhaitak, who died on the spot whereas, the complainant received a firearm injury. The investigating officer also took into possession the hammer which was used for breaking the door, he also took into possession electric bulbs installed on the premises, in the light of which accused were identified and, he also took into possession the empties from the place where the deceased Surat Khan lost his life and, he also took into possession 92 empties of 7.62 bore from inside the Bhaitak where the deceased Asif Khan was done to death and, the complainant received a firearm injury. Apart from above, the investigating officer also observed bullet marks over the wall inside the Bhaitak and he also collected 08 spent bullets. The circumstances do tell that the incident occurred at the stated place and, in the stated manner. The presence of the deceased alongwith the complainant is established on record, as admittedly, the deceased had gone to perform lsha prayer and, so the complainant. In the site plan, the mosque is shown in front of the house of the deceased and, the site plan also shows the Bhaitak adjacent to their house. When blood was collected from the respective places of the deceased, when the empties were collected from the spot when the broken door was noted by the investigating officer and when the hammer was recovered from the spot, then no ambiguity is left that the unfortunate deceased were fired at in the stated manner.
Record further tells that the dead bodies of the deceased alongwith the complainant were shifted from spot to the hospital and, it was the complainant who reported the matter. The learned counsel for the appellants wanted to convince this court that neither the report was made in the stated manner, at the stated time, nor the dead bodies were shifted to the hospital. It was further highlighted that neither the complainant could tell the source through which the dead bodies were shifted, nor he could convince that why he reported the matter after a considerable delay. The attention of this court was invited to the time, which according to the learned counsel for the appellants, was tampered, but when the time of occurrence is taken into consideration with the time of report and, with the time when the injured was examined, no ambiguity is left that the unfortunate incident occurred at the stated time. True that the complainant is closely related to the deceased, but equally true that the complainant received a firearm injury in the incident, who was shifted to the hospital from the spot, alongwith the dead bodies. Mere relationship of the complainant with the deceased would hardly be a circumstance for excluding his testimony from consideration, for doing so, this court is to see the credibility and truthfulness of the witness. If this court would come to the conclusion that the witness was not telling the truth, then his relationship with the deceased can be taken into consideration. to the benefit of the accused. The seat of injury on the body of the complainant is another circumstance, which confirms his presence on the spot, true that the stamp of injury under no circumstances would confirm that what the witness is telling is the whole truth, but once the witness establishes his presence on the spot and, once the court accepts him as a truthful witness, then his injury would confirm his presence on the spot and the present case is no exception. We cannot expect that the complainant would let off the killers by substituting his real uncle. Reliance can be placed on lmran Mehmood Versus the State and another (2023 SCMR 795), which reads as follows: - 'However, it is by now a well-established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses out-rightly. If the presence of the related witnesses at the time of occurrence is natural and their evidence is straight forward and confidence inspiring, then the same can be safely relied upon to award capital punishment. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has brutally murdered her father and uncle."
9. The matter was reported by the complainant in the hospital. It was after the report was made that the injury sheets and inquest reports were prepared, the dead bodies were sent for postmortem examination and, the injured was examined by the doctor. True that the time of examination of the injured is shown as 09:45 PM, but equally true that it alone would hardly be a circumstance to be taken to the benefit of the appellants, rather this court is to see that why such a delay was caused and, that how the complainant reached to the hospital As admittedly, the place of occurrence is situated at a long distance from the hospital and, also from the police station, so it took time in reaching to the hospital and, time was consumed in bringing the dead bodies and the complainant to the hospital. Record tells of the distance between spot and hospital as 55 kilometers, so it took time to arrange vehicles and, it took time for the complainant and, the dead bodies to reach to the hospital. The learned counsel for the appellants invited the attention of this court not only to the delay caused, in reporting the matter, but he also submitted that when the report was made at 23:00 hours, then how the complainant was examined at 09:45 PM. He wanted to convince this court that the delay in reporting the matter and, the medical examination, of the complainant, before the report, are the circumstances which confirms deliberation and consultation. As the complainant received injury in the same episode and as the complainant was not only related to the deceased but also to the accused/appellants, so this court is not inclined to hold that consultation was made before the accused were charged. Under no circumstances, the complainant would let off the actual killers by substituting his innocent relatives. The learned counsel for the appellants invited the attention of this court to the post mortem reports of both the deceased and submitted that when the deceased were received in the hospital alongwith the complainant, then why the post mortem report was delayed till 12:40 am. The submissions of the learned counsel for the appellants would hardly convince, as the unfortunate incident occurred in an area which had recently been merged in the province of Khyber Pakhtunkhwa, because of the constitutional amendment, so not only the police, but the medical experts were lacking the required training. When such are the circumstances, then the procedural irregularities cannot be taken into consideration, that too for the acquittal of an accused. The medical evidence confirms that the dead bodies were examined by the doctor, their post mortem reports were prepared and the doctor also confirmed that the injured complainant was examined and his medico-legal certificate was prepared. The doctor was examined as PW-3, who explained that he examined the injured and he also confirmed that he conducted autopsy on the dead bodies of the deceased.
The doctor explained the time of examination of the injured and he also explained the time at which the post mortem examination was conducted. When the witnesses remained consistent, when the matter was promptly reported and when the delay caused has plausibly been explained, then no ambiguity is left that the prosecution succeeded in connecting the appellants with the tragic incident. This court is to see as to whether the incident occurred at the stated time and in the stated manner, so for that particular purpose, we went through the site plan where we found the respective places of the deceased and we also found that how the investigating officer collected blood from the spot and that how and from where he took into possession the crime empties. The time of occurrence does confirm that the deceased after performing lsha prayer were on their way to their house when the accused attracted to the spot and fired at them. The learned counsel for the appellants wanted to convince that if the accused were present on the spot, armed with deadly weapons, then there was hardly an occasion for the deceased Asif Khan and the complainant to leave the spot, to enter the Bhaitak and get the door closed from inside, rather they would have been done to death at the place where the deceased Surat Khan was killed. The submissions of the learned counsel for the appellants would hardly convince, as it depends upon the circumstances, which prevailed at the time and as the accused targeted the deceased Surat Khan, so the deceased Asif Khan and complainant got the chance to enter the Bhaitak, but the accused chased them, broke the door. entered the Bhaitak and fired at them. The collection of hammer from the spot has further confirmed the stance of the complainant and the broken door speaks of how the appellants entered. As blood was collected from inside the Bhaitak alongwith crime empties, so no ambiguity is left that the deceased Asif Khan received injuries inside the Bhaitak and so the complainant. Not only this, but the investigating officer also collected 08 spent bullets from inside and he also observed bullet marks, so the circumstances support the case of the prosecution. It was submitted that if the Bhaitak was adjacent to the house, then it was easy for the deceased to enter the house, as there would be a connecting door. The learned counsel based his submissions on presumptions, if the door was there, the investigating officer would have noted the same, but its absence in the site plan compels us to hold that there was no door, connecting Bhaitak to the house. When such are the circumstances, then this court is confident in holding that the deceased and the complainant had no chance to leave, which enabled the accused to kill. It was further highlighted that if the interest was to kill, then why the complainant received a single firearm injury, that too, on the non-vital part of his body. May be the complainant was not required to the accused/appellants, so he survived. Had he been the target he would have easily been killed. The quick succession of events confirm that the matter was promptly reported and the dead bodies alongwith the complainant were hurriedly shifted to the hospital.
10. True that complainant is the sole eye witness and in case of single eye witness, much care is needed and in case of sole eye witness the prosecution is under the obligation to collect independent evidence in support of its claim. This court is to see as to whether the complainant could stand the test of searching cross examination and that whether the defence succeeded to shatter his testimony. We despite efforts could not come across any inconsistency between the statement of the witness and the report he made. Neither the complainant exaggerated the charge, nor the complainant improved his statement, so the bonafide of the complainant cannot be doubted and the defence despite efforts could not bring on record that the complainant was interested to falsely implicate the accused for the commission of the offence. It is not the quantity, rather it is the quality of evidence, which must be taken into consideration. It is the prerogative of the prosecution to produce the witness of its choice, provided the witness inspires confidence. As right from the beginning till the end, the complainant remained consistent on material aspects of the case, so the defence could not convince that either the complainant was not present on the spot or was not telling the truth. In the like circumstances we derive wisdom from the judgment of the apex Court reported as Qasim Shahzad & another Vs. The State & others" (2023 SCMR 117).
"As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence. It is not that who is giving evidence and making statement. What is relevant is what statement has been given and it is not the person but the statement of that person which is to be seen and adjudged. In Niaz-ud-Din v. The State (2011 SCMR 725), it was held that conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence and not the quantity which matters."
11. The scribe was examined as PW 4, who stated that on receiving information regarding the arrival of the dead bodies to the hospital. He rushed to the hospital where the complainant reported the matter. He also confirmed that after the report was made, he prepared the injury sheets, inquest reports, the dead bodies were sent for post mortem examination and the injured complainant was sent for his medical examination. This witness was cross examined regarding the time at which he received information and regarding the manner in which he reached to the hospital, but the defence could not succeed to discredit this witness and as such the scribe succeeded to explain the time at which the injured was examined and the time at which the injury sheets and inquest reports were prepared. The investigating officer was examined as PW-8, who also explained that how he received copy of the FIR, how he visited the spot, how the appellants were arrested and that how on their pointation the weapon of offence were recovered. The investigating officer could explain each and every aspect of the case, he also confirmed that the empties were collected from the spot and he also confirmed the source of identification, as it was he who collected electric bulbs from the nearby walls. It is the consistency of the witnesses, which convinces the judicial mind of this court, regarding the manner in which the incident occurred, regarding the presence of the complainant on the spot at the stated time and regarding the injury of the complainant which he received in the incident. When the defence could not bring material contradictions in the statements of the witnesses and, when the witnesses remained consistent, then this court is left with the only option to accept the testimony of the complainant and to accept that the accused killed the deceased.
12. The appellants on their arrest led the investigating officer to the place from where the Kalashnikovs were recovered, the same were taken into possession and were sent to the firearms expert alongwith the collected empties. A report was received telling that some of the empties, collected from the spot, were fired from the recovered weapons. The learned counsel for the appellants wanted to convince that neither the recoveries were made in the manner, nor there was an occasion for the appellants to conceal the same, that too, near the place of occurrence, so the recoveries of weapons and its positive report would hardly be a circumstance to be taken into consideration.
As admittedly, the appellants were arrested and the weapons were recovered, so the safe custody of the same could not be disputed and the positive report of the same has strengthened the prosecution case. True that laboratory report is supportive in nature, but equally true that the same can be taken into consideration provided the prosecution succeeds to bring home guilt against the accused. As in this particular case, the prosecution succeeded to establish its charge against the appellants, so this court is inclined to take the laboratory report into consideration. Reliance is placed on the judgment reported in "Muhammad Hanif vs the State" (2023 SCMR 2016) it has been held as under: - "The weapon of offence recovered from the petitioner was transmitted to the office of Forensic Science Laboratory without any delay in its dispatch. The report of Forensic Science Laboratory further confirmed that the empties recovered from the spot are matched with the weapon recovered from the appellant which is positive in nature."
13. The medical evidence is in harmony with the ocular account. The number of injuries commensurate with the number of accused and the seat of injuries on the bodies of the deceased further confirmed that they were fired in the stated manner. On one hand, the ocular account is trust worthy whereas, on the other, the medical evidence supports the case of the prosecution, so the harmony between the two has further strengthened the case of the prosecution and the unison between the two can be taken into consideration for holding the appellants responsible for the tragic incident. In similar circumstances, we derive wisdom from the judgment of the apex Court reported as "Aqil Versus The State", (2023 SCMR 831), which reads as follows: - "The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused."
14. True that the motive could not be proved on record, as neither the complainant could tell regarding the same, nor the investigating officer court record the statements of independent witnesses, so it was the weakness of motive, which turned to be the cause for awarding the awarded sentence. The weakness or absence of motive would hardly be a circumstance to be taken into consideration for the acquittal of an accused and the learned trial court has rightly appreciated this particular aspect of the case.15. The cumulative effect of what has been stated above leads this court to an irresistible conclusion that the prosecution fully succeeded in bringing home guilt against the appellants and the impugned judgment is suffering from no irregularity or inherent defects which would call for interference. The impugned is well reasoned and the learned trial court fully appreciated the evidence on file, which calls for no interference. The instant criminal appeal, being bereft of any merit, is hereby dismissed.
16. Now diverting to the criminal revision No. 139-P/2024, which has been filed by the complainant asking for the enhancement of the awarded sentence. In order to appreciate the approach of the learned trial Court to this particular issue, we deem it essential to take into consideration the circumstances which turned to be the cause for the tragic incident, and the relationship between the parties. There is no denial to this fact that for the unfortunate incident, no specific motive is given. rather there remained uncertainty from beginning till the end, so this Court is to asses that what led to the tragic incident and that what prompted the appellants and the absconding co- accused to kill the deceased. True that the complainant succeeded in establishing his presence on the spot, but equally true that he could not explain the circumstances which prevailed at the time of occurrence and he could not explain that why the appellants committed the murders. As for the incident, as many as 04 accused, including the appellants, are charged, so this Court is to see that whether the prosecution succeeded to bring on record the interest of the accused, in killing the deceased, and that whether the prosecution could convince that who out of the accused was nourishing a grudge and who wanted to kill. As to all the accused, similar role is given, so this Court finds it hard to discover that what accused had what interest and that why all the accused joined hands to eliminate the deceased. We despite efforts failed to find the same and as such, it was the uncertainty of events which turned to be the cause for the awarded sentence, instead of the normal penalty of death. We do not deny that the tragic incident claimed lives of the deceased, but what puts us on guard is our anxiety to know that what happened before the incident and that what happened at the time of occurrence, which cause mayhem to the deceased. On one hand the accused are closely related, whereas on the other the motive being a dispute over property could not be proved through independent evidence. Even the Investigating officer could not record statements of independent witnesses in that respect, so this Court is confident in holding that the cause of killing is shrouded in mystery and even the complainant concealed the same. When such are the circumstances, then the benefit of the same must be extended to the appellants, but not in the shape of acquittal, rather it would determine the appropriateness of sentence to be awarded.
We lurk no doubt in mind that the approach of the learned trial Court is just, proper and in accordance with law which does not call for interference. The instant criminal revision is lacking substance, the same is dismissed as such.