' NAZIR AHMAD BHATTI, J.--- Javed Zaman, appellant has been convicted on 5-6-1989 by the Additional Sessions Judge-I, Swabi under section 302, P.P.C. For the murder of Muhammad Qayum and sentenced to undergo life imprisonment and to pay a fine of Rs,25,000 in default whereof to undergo further rigorous imprisonment for four years and the fine if realized was to be paid as compensation to the heirs of the deceased. By the appeal in hand he has challenged his conviction and sentence. The complainant Muhammad Khurshid has also filed Criminal Revision Petition No,36 01 1989 for enhancement of the sentence to that of death. Judgment in the appeal in hand will also dispose of the aforesaid criminal revision petition.
2. Complainant, Muhammad Khurshid took the dead body of his son Muhammad Qayyum to Police Station Swabi on 4-11-1987 at 16-00 hours and reported that he had gone to village Jehangira in connection with a private business and when he came back he was informed by his cousin Fida Muhammad that his son Muhammad Qayyum had been killed by the appellant at 15-30 hours by firing with Kalashnikov. He also disclosed that both the parties were closely related to each other and he did not know of any motive for the said murder. He further disclosed that the occurrence had been seen by the aforesaid Fida Muhammad and Khan Zeb. This report was incorporated in F.I.R. No,633 of the said police station. The appellant was arrested on 15-11-1987 and after investigation he was sent up for trial before the learned Additional Sessions Judge-I, Swabi. The learned trial Judge charged the appellant under section 302, P.P.C. For the murder of Muhammad Qayyum but he pleaded not guilty and claimed trial. The State produced six witnesses in proof of the prosecution case.
3. P.W.3 Muhammad Khurshid is the complainant as also father of deceased Muhammad Qayyum.
He has deposed that P.W. Fida Muhammad the sole eye-witness produced in evidence and P.W.
Khan Zeb the other eye-witness but not produced in evidence and the appellant are related to him.
He has confirmed the contents of the When he came back from village Jehangira at about 3-30 p.m. He was informed by P.W. Fida Muhammad that his son had been shot dead by the appellant with a Kalashnikov. He took the dead body to the police station and lodged the report. At the time of making the report he did not know about the motive but later on he learnt that his deceased son and the appellant had altercation with each other over games while playing hockey. In cross- examination he stated that the dead body was being taken to the police station when he arrived back from village Jehangira and he accompanied the dead body. P.W.4 Fida Muhammad is the sole eye-witness of the occurrence. He has deposed that on the day of occurrence at Mazdigar time he had taken his goat for grazing to Maneri Khwar. He heard the report of fire-shots and saw the appellant firing at deceased Muhammad Qayyum with a Klashnikov. The deceased was present in the Daga of Sher Adam Khan and as a result of the shots fired by the accused the deceased was hit. After the firing the accused decamped from the spot and he went near Muhammad Qayyum and found him dead. He did not know about the motive for the murder on the day of occurrence but 2-3 days afterwards he came to know that the deceased and the accused had altercated with each other while playing hockey.
4. P.W.5 Dr. Liaqat Ali carried out post-mortem of the dead body of Muhammad Qayyum on 4-11- 1987 at 16-30 hours. The doctor found seven entrance wounds and two lacerations on different parts of the dead body, out of whom two wounds were of the dimension of 4" x 2", one injury measuring 2" x 1" and four injuries of the dimension of 1/4" x 1/4". The doctor found all the vital organs of the body injured. According to his opinion death was instantaneous. The doctor also recovered one foreign body from the low back and a pistol handle from the Shalwar of the deceased. P.W.6 Nabiullah S.H.O. Recorded the F,I,R. At 16-00 hours on 4-11-1987. He prepared the inquest report and injury sheet of the deceased Muhammad Qayyum and sent the dead body to the hospital where after he went to the spot, After inspection of the spot he prepared the site plan with the assistance of P.W. Fida Muhammad and Khan Zeb. He also recovered blood-stained earth, two spent bullets from the wall of the house of one Riaz Khan, and five empties of Kalashnikov giving smell of fresh discharge from the spot. He had reached the spot at 16-30 hours and nobody was present there. Both the aforesaid eye-witnesses had accompanied him from the police station to the spot and he recorded statement of P.W. Fida Muhammad at 17-00 hours. He arrested the accused on 15-11-1987 and sent him up for trial after completion of the investigation.
5. The appellant in his statement under section 342, Cr.P.C. Denied any relationship with the complainant party but subsequently admitted the same. He also denied the commission of the offence and stated that he had been falsely charged and the eye-witnesses Fida Muhammad had deposed against him on account of family ill-will and suspicion. He did not produce any defence.
He also refused to make a statement on oath.
6. There were two eye-witnesses of the occurrence but during the trial only one P.W.5 Fida Muhammad was produced and the other Khan Zeb was abandoned. No reason has been disclosed for not producing Khan Zeb as a witness. However, it has been admitted by the complainant as well as the appellant that they are related to each other. The appellant also admitted that P.W.5 Fida Muhammad, the solitary eye-witness, was also related to him when he disclosed in his statement under section 342, Cr.P.C. That the said witnesses had charged him on account of family ill-will. There is also nothing on the record to suggest that there was any previous enmity between the parties or the eyewitness. In the circumstances it cannot, therefore, be said that the eye-witnesses had any animus with the appellant. He is related to both the parties and does not have any previous animosity with the appellant. As such the testimony of the sole eye- witness P.W.5 Fida Muhammad cannot be discarded. Even otherwise the parties belong to the same village. They are known to each other from before. It is a daylight occurrence. There is no question of false accusation. The other important point is that it is a case of a single accused and no question of substitution would arise. Nobody would charge an innocent person for such a capital offence if the culprit has not actually committed the offence.
7. The learned counsel for the appellant has contended that the complainant is not an eye-witness of the occurrence and the eye-witness who was produced during the trial was examined by the Investigating Officer an hour and a half after the occurrence and he did not make himself available for recording his statement. We have gone through the record and we find in the testimony of P.W.
Fida Muhammad that he was all the time available to the Investigating Officer from the time when he reached the police station and also when the Investigating Officer went to the spot. Actually the Investigating Officer had inspected the spot with the assistance of this witness and the other eye- witness. It is, therefore, not the fault of this witness that his statement was not recorded by the Investigating Officer earlier than 5-00 p.m. This objection of the learned counsel for the appellant has not impressed us in any way and it has also not cut much ice in causing any doubt over the prosecution story.
8. Even otherwise the occurrence took place at 15-30 hours and the report was made within half an hour. This circumstance will also exclude the possibility of fabrication of a false story. The naming of a single accused would also indicate that no such idea was in the mind of the complainant or the eye-witness.
9. The learned counsel for the appellant has further contended that the recovery of spent bullets and empties from the spot was not duly proved. He has contended that the Investigating Officer had recovered two spent bullets from the wall of the house of one Riaz Khan but he did not examine the said person to prove the aforesaid recovery. The learned counsel also contended that the Investigating Officer Also did not get any other person to witness the recovery of the empties from the spot and both the eye-witnesses attested the said recovery which had also become doubtful. This argument of the learned counsel is not worth serious consideration for the reason that it was not necessary for the Investigating Officer to cite the owner of the house to witness the recovery of the spent bullets from the wall of his house. Such a recovery could be attested by any person present at the spot at the time of recovery. We also do not see any objection, legal or factual, to the eye-witnesses becoming witnesses of recovery of any incriminating articles from the spot. As such recoveries would not become doubtful simply for the reason that the recovery memo.
Was witnessed by the eyewitnesses. Even otherwise the eye-witnesses did not bear any grudge against the accused and it is difficult to believe that they may have become witnesses of a false recovery memo.
10. The learned counsel for the appellant then contended that the other eyewitness Khan Zeb was abandoned by the State without any reason and the prosecution has not shown if that witness had either been won over or was not ready to depose in favour of the prosecution case and withholding him from giving evidence was not proper and had made the case doubtful. We have very seriously considered this aspect of the matter. No doubt no reason has been disclosed for not producing Khan Zeb as a witness but it is also not mandatory under any law that the prosecution must produce all the eye-witnesses in a case. It is the discretion of the State to produce or not to produce all the eye-witnesses. Conviction in a case can be recorded even on the solitary testimony of witness if the same is truthful.
11. The learned counsel for the appellant also contended that there was no motive for the appellant to commit the murder of the deceased or at least no sound motive had been disclosed in this connection. Although motive is not disclosed in the F.I.R. And subsequently the prosecution alleged that some altercation had taken place between the appellant and the deceased prior to the occurrence, yet many an offence has been committed without any motive. It is also a fact that motive may be in the mind of the culprit and nobody may know about it. The absence of a motive does not prove the innocence of the culprit. Even otherwise the question of motive was not of much importance because there is a person who is a witness of the occurrence and who had actually seen the appellant firing at the deceased.
12. It was further contended by the learned counsel for the appellant that there were different dimensions of injuries sustained by the deceased and there was a possibility of more than one weapon having been used. It is a fact that the deceased received injuries of different dimensions.
Some injuries were of the dimension of 4" x 2", some lacerations, some injuries of the dimension of 1/4" x 1/4" and there was one injury of the dimension of 2" x 1". We have given our serious consideration to this aspect of the matter but we have arrived at the conclusion that such injuries could be caused by one weapon. Different places of the body were hit. Some bullets had hit the bones and some pierced fleshy matter only and some bullets passed by the parts of the body causing lacerations. It is a fact that a bullet piercing a bone would cue much larger entrance than a bullet piercing through the fleshy matter for the reason that in the first case the bone would be broken causing a larger aperture whereas the bullet will pass through the fleshy matter very easily causing a narrower aperture. There is also the fact that the spent bullets recovered from the wall and empties recovered from the spot were of Kalashnikov and the same would also prove the use of one weapon for the commission of the offence.
13. As a result of the above discussion we have arrived at the conclusion that the case against the appellant was proved beyond any doubt whatsoever. He was guilty of the murder of Muhammad Qayyum and he was rightly convicted by the learned Additional Sessions Judge. In so far as the question of sentence is concerned we have heard Mr. Zahurul Haq, Advocate in support of the revision petition but we are unable to accept his contention for the reason that the learned trial Judge took into account the fact that the motive was shrouded in mystery and taking a lenient view instead of sentence of death passed the sentence of life imprisonment and fine. We are also of the opinion that since the motive was not disclosed at the time of reporting the occurrence, it was a good ground for the learned trial Judge to take a lenient view of the matter. Consequently we do not find any fault with the sentence awarded to the appellant by the learned trial Judge.
Resultantly we would dismiss both the appeal and the revision petition.