1. MUNAWAR AHMED MIRZA, J.--- This is a reference for confirmation of conviction and sentence of death by hanging awarded to Abdul Sattar son of Abdul Nabi by learned Sessions Judge, Quetta vide judgment, dated 6th June, 1991. Convict has also filed Appeal No. 27 of 1991 challenging the propriety of impugned judgment, therefore, we propose to decide reference and appeal by this common judgment.
2. Relevant facts briefly stated are that on 22-7-1987 at about 8-30 a.m. Abdul Malik son of Haji Rahim Dad was murdered by convict/appellant (Abdul Sattar) causing fire-arm injuries. It is the case of prosecution that deceased Abdul Malik who was resident of village `Mundrani' Tchsil Bhag was staying at Sheikh Manda, Quetta with his cousin-brother Maulvi Jamaluddin. The complainant Ghulam Qadir also belonged to village ---Mundrani---. On the date of incident, complainant accompanied deceased Abdul Malik in a local bus from Sheikh Manda and came towards Quetta bazar. They alighted near local bus-stand and proceeded towards Annah Road through Suraj Gunj Bazar. It is alleged that on the way they stopped to purchase Audio-cassettes from a Tharawala; when convict Abdul Sattar armed with pistol appeared from behind, and fired at deceased Abdul Malik from very near distance. The fire shot hit deceased Abdul Malik who fell down bleeding and expired instantaneously. Complainant chased the convict Abdul Sattar, but he made good his escape. Complainant then stopped a jeep walla namely Aziz Ahmed Malik, who brought the deceased Abdul Malik to Civil hospital. On information from casualty department concerned police came to the hospital, recorded Fard-Biyan of complainant on the basis whereof F.I.R. No.72/87 under section 302, P.P.C. Was lodged with City Police Station, Quetta. Convict was apprehended from near Sariab, while attempting to escape in a bus. Crime weapon with four live cartridges/rounds were also recovered from the possession of convict Abdul Sattar. During investigation confessional statement was recorded on 26-7-1987. Eventually after preparation of final challan convict was sent up for trial before learned Sessions Judge, Quetta, On commencement of trial, charge was read out to convict/appellant by learned Sessions Judge, Quetta on 29-11-1987, to which he pleaded `Not Guilty' and claimed trial. Record reveals that prosecution examined 13 witnesses to bring home the guilt against convict/appellant.
2. P.W.1 Shafiq Ahmed Bakerywalla, whose business premises is in the close vicinity of place of occurrence; deposed that on hearing gun shot report he came out of his shop, saw a person lying injured and people gathered around him. P.W.2 Dr. Muhammad Younis, Police Surgeon Civil Hospital, had examined deceased Abdul Malik on 22-7-1987 and noticed following injuries on his person:--
(1) A rounded circular wound 1/2 x 1/2 c.m. On the occipital region of skull.
(2) Bleeding from both the nostrils.
(3) Abrasion 2 x 3 c.m. On the forehead.
(4) Abrasion 1 x 2 c.m. On the nose.
3. According to his opinion probable cause of death of deceased was injury on the vital organ i.e. Brain; excessive haemorrhage. Medical Officer maintained that fatal injury was caused to deceased by fire-arm, he produced certificate Exh.P.2/A. However, on the directions of competent authority post-mortem was not conducted.
4. P.W.3 is complainant Ghulam Qadir who gave complete account of the incident. In his testimony complainant clarified that while alongwith deceased he was purchasing cassettes from a foot- pathwala on Suraj GunJ Bazar when, convict Abdul Sattar arrived there holding a pistol in his hand and fired at deceased Abdul Malik causing his instantaneous death. According to him convict was chased but he quickly disappeared from the scene. He took dead body of deceased Abdul Malik to Civil Hospital in the jeep of Aziz Ahmed Malik, and also informed Maulvi Jamaluddin on telephone about the incident.
5. P.W.4 Maulvi Jamaluddin Pesh Imam Killi Almas Sheikh Manda, Quetta deposed, that deceased came a day prior to incident from `Mundrani' Tehsil Bhag and stayed with him for the night. Next morning on 22nd July, 1987 after breakfast deceased accompanied complainant Ghulam Qadir for going to Quetta Bazar. Whereas at about 9 a.m. This witness received telephonic message from Ghulam Qadir regarding murder of deceased Abdul Malik by fire-arm injuries at the hands of convict Abdul Sattar. He also gave some details of prior dispute and unpleasant past relations between deceased and the convict party.
6. P.W.5 Haji Abdur Rahim, a transporter acted as Mashir and produced inventory relating to clothes of deceased Abdul Malik and sealed parcels of said articles prepared in his presence.
7. P.W.6 Amanullah Sub-Inspector Police Traffic, accompanied S.H.O. Of City Police Station Muhammad Sharif P.W.12 to check-post Sariab alongwith other police officials and complainant.
8. The witness proved arrest of convict Abdul Sattar around 1-30 p.m. From a bus which was proceeding towards Mastung. On personal search of convict, .22 bore pistol containing 4 live cartridges wrapped in handkerchief were recovered and inventorv Exh.P.6-A has been proved. The witness affirmed preparation of sealed parcel in his presence, which were latter sent to Ballistic Expert.
9. P.W.7 Mazhar Mahmood, Magistrate First Class recorded confession of convict as Exh.P.7-B on 26-7- 1987. He also proved certificate indicating that confession was voluntary and true.
10. P.W.8 Aziz Ahmed Malik owner of jeep, who was passing through Suraj Gunj Bazar after the incident has confirmed removal of dead body of Abdul Malik to Civil Hospital at the request of complainant.
11. P.W.9 Abdur Rehman, Constable City Police Station is Mashir of blood-stained earth secured on the pointation of complainant and taken into possession vide inventory Exh.P.9-A. He also proved inventory Exh.P.9-B regarding empty cartridge which was lying at the place of incident.
12. P.W.10 Abdul Ghaffar, Patwari of Tehsil Quetta had prepared site plan Exh.P.10-A on the pointation of S.I. Jamil Ahmed.
13. P.W.11 Mubarik Shah who is Chemical Expert, from Forensic Science Laboratory proved existence of human blood on the articles sent to him. He produced certificate Exh.P.11-A issued by him.
14. P.W.12 Jamil Ahmed of City Police Station reached in the hospital on information from Casualty Department, Civil Hospital, Quetta. He immediately recorded Fard-e-Biyan of complainant which was latter sent to City Police Station for registration of F.I.R. No.72/87. Convict was apprehended by him from near Sariab Check-post alongwith crime weapon and 4 live cartridges/rounds. Major part of investigation was conducted by this witness. He gave complete account of investigation carried out by him in this case. All the inventories, sealed parcel articles, inquest report Exh.P.12/B and site plan Exh.P.12/A were prepared by him.
15. P.W.13 Sub-Inspector, Muhammad Sharif, who also conducted part of the investigation submitted challan before the Court. He also produced report of Ballistic Expert Exh.P.13/A and Exh.P.13/B.
16. Statement of convict under section 342, Cr.P.C. Was recorded on 24-2-1991 wherein he denied all the allegations. However, answering a question convict/appellant has admitted his apprehension by police on pointation of complainant at Sariab Check-post. Accused was examined on oath within the purview of section 340(2), Cr.P.C. On 29-4-1991 wherein he expressed his innocence and deposed about his false implication in the instant case. One defence witness namely Abdul Nabi who is father of convict was examined, the witness explained that case was fabricated against convict due to enmity on certain previous matrimonial dispute and other false accusations.
3. Learned Sessions Judge, Quetta on appraisement of evidence found convict Abdul Sattar guilty for the offence under section 302, P.P.C. And sentenced him to death by hanging vide impugned judgment, dated 6th June, 1991. Accordingly reference was made to this Court under section 374, Cr.P.C. For confirmation or otherwise of sentence. Accused Abdul Sattar has also filed Appeal No.27 of 1991, challenging the above conviction and sentence.
4. Mr. Ehsanul Haq learned counsel for convict/ appellant strenuously raised following contentions; (a). Complainant Ghulam Qadir (P.W.3) is solitary witness of incident, therefore, death sentence cannot be based on his evidence alone specially when other witnesses were also available at the place of occurrence.
(b) Confession is neither voluntary nor legally recorded.
(c) Recovery of pistol from possession of covnict and empty cartridges, recovered from place of occurrence are totally unreliable as no independent witnesses have been examined.
(d) Expert evidence, i.e. (i) Medical Certificate Exh.P.2/A regarding probable cause of death, and
(ii) Ballistic Expert's report Exh.P.13/B in respect of incriminating articles sent after a considerable delay, is not worthy of credence.
(e) Alternately even if conviction is maintainable, the confessional statement Exh.P.7/B reflects happening of incident on account of family honour, therefore, maximum penalty of death was not justified, as such leniency is called for.
5. Learned Advocate-General, assisted by learned AA.-G. And Mr. Tahir Muhammad Khan Advocate for complainant vehemently opposing the appeal and supporting the reference made following submissions.
(a) Testimony of complainant is unshaken and quite consistent with prosecution case. No enmity is attributed to witness, therefore, in the given circumstances even solitary version of complainant is sufficient for awarding death penalty to convict Abdul Sattar.
(b) Confessional statement has been recorded without delay by adopting proper procedure, therefore, on being satisfied about its truth and voluntaries can form sole basis for conviction.
17. However, confession supported by version of complainant, makes impugned judgment flawless.
(c) Police officials are competent witnesses unless their interestedness or bias is established.
18. Recovery of crime weapon and five cartridges from the possession of convict/appellant at the time of his apprehension in presence of P.W.6 Amanullah coupled with version of the Investigating Officer is reliable and does not suffer from any legal defect. Similarly recovery of empty from the place of incident is duly proved.
(d) Medical report fully establishes the cause of death of deceased Abdul Malik. Similarly when no tampering is alleged or proved, mere late despatching of articles to Chemical Examiner or to Ballistic Expert does not have any adverse affect to evidentiary value of such reports.
(e) Mere relationship specially when it is too remote cannot be deemed sufficient for discrediting testimony of complainant or P.W. Maulvi Jamaluddin.
(f) Public conduct in declining to appear as witness, is lamentable and Court can take judicial notice of this aspect, specially when preponderant evidence fully established the guilt of convict/appellant.
6. We have gone through whole record and carefully considered the arguments addressed by learned counsel for parties. It may be seen that factum of unnatural death of deceased Abdul Malik on account of fire-arm injury is fully established from ocular evidence medical certificate, inquest report and result of investigation. Even otherwise this aspect has not been disputed by the convict.
7. Firstly complainant is the only eye-witness of the incident. He has given complete description of all the happenings in his presence during broad daylight. There is absolutely no dispute about identity of convict/appellant by complainant because they belong to same village ---Mundrani--- thus they knew each other even, prior to occurrence.
19. Mr. Ehsanul Haq, Advocate attempted to show discrepancies in the statement by pointing out that medical report shows injury at occipital region of skull whereas complainant mentioned it on the backside of head of deceased. It was suggested that complainant Ghulam Qadir had tried to suppress his relationship with deceased which was otherwise established by p.W. Maulvi Jamaluddin. Similarly according to learned counsel details relating to convict/appellant's apprehension on the pointation of complainant accused have not been mentioned by him.
20. Scrutiny of evidence reveals that complainant unambiguously stated that accused had fired pistol shot on the head of deceased causing his instantaneous death. Factum of Abdul Malik's death on the spot is further supported by P.W.1 Shafiq Ahmed, and P.W.8 Aziz Ahmed Malik. Apparently distinction between back of head and occipital region by an illiterate person cannot be effectively visualized thus would not be of much significance. Now looking into the version of P.W.4 it is clear that he does not make mention concerning relationship of complainant with deceased Abdul Malik. He has only deposed about distant relationship with complainant as well as deceased Abdul Malik. But record does not support any direct relationship between deceased and complainant.
21. Therefore, contention of learned counsel for appellant that complainant made any attempt to conceal the facts is totally misconceived. At this stage, it may be pertinent to mention here that convict/appellant in his statement recorded under section 342, Cr.P.C. Replying to question 7 has admitted his arrest on the pointation of Ghulam Qadir by the police at Sariab Custom post while sitting in a bus. For ready reference said question and its answer is reproduced below, therefore, alleged discrepancies or omissions are of no consequence.
22. Q.7. It is alleged that on 22-7-1987 you were arrested on the pointation of P.W. Ghulam Qadir by police at Sariab Custom Check-post while you were sitting in a bus stand Mastung and on your personal search one pistol .22 bore loaded with four live cartridges were recovered from your possession?
23. Ans. I have been arrested, but no recovery was effected from me.
24. Learned counsel for appellant while referring to observations in cases (i) PLD 1960 SC 387, (ii) 1972 SCMR 620 (iii) PLD 1973 SC 150 (iv) PLD 1973 SC 778 (v) 1973 SCMR 527, canvassed that reliance on solitary statement was not safe for dispensation of justice.
8. Discussion in all aforequoted cases shows that circumstances of each case must be independently taken into consideration. Principle rejecting solitary statement does not have universal application. Rather it provides procedure of prudence and caution for assessing intrinsic evidentiary value of sole witnesses. However, it has been repeatedly ruled that if testimony of single witness is unbiased, consistent, reliable, trustworthy and unimpeached same can legitimately form basis for conviction of the accused. It may be seen that complainant Ghulam Qadir was exhaustively cross-examined, but nothing substantial came out to impeach his credit or cast doubt on his veracity Observations of following judgments are highly instructive in this context.
(i) Mumtazuddin v. State PLD 1978 SC 114.
(ii) Mali v. The State 1969 SCMR 76.
25. "Learned counsel's contention that it would be unsafe to rely on the evidence of a solitary witness is, in our, view, untenable, for, a conviction can be based on the evidence of even a single witness if his testimony is acceptable. The testimony of Falak Sher has been accepted by all the Courts below and we see no reason to differ from their conclusions. He had ample opportunity to see the petitioner and to single him out as the robber armed with a gun. This was a special circumstance which fixed his identity "
(iii) Ali Ahmed alias Ali Ahmed Mia v. The State PLD 1962 SC 102.
26. "There is no substance either in the contention that the conviction could not have been based on the evidence of the Chowkidar alone. It may be that the case against the appellant was started on the basis of the petition submitted by him. But apart from this, there is nothing also on the record to show that he had any particular interest in falsely implicating the appellant. The suggestion that he might have had such motive as he had been dismissed by the appellant is also baseless, for, it appears, that he did not even know when the Board dismissed him. Prudence of course requires that the evidence of an interested witness should be scrutinised with care and conviction should not be based upon such evidence alone unless the Court can place implicit reliance thereon. But in the present case there is nothing to indicate that he is an interested witness in that sense.
27. Moreover, his assertion that he did not put his signature (Exh. D) on the pay-register is supported also by the evidence of the Handwriting Expert who has given detailed and convincing reasons for taking the view that the signature does not tally with his admitted signatures. We have also compared the signatures ourselves and have come to the conclusion that the reasons given by the expert were correct. We are unable, therefore, to agree that the conviction of the appellant could not have been based upon such evidence."
(iv) Shah Wali v. The Crown (1971 SCMR 273).
28. "Nothing, however, depends on the large or the small number of witnesses, if they are found to be reliable. Ghulam Sarwar, P.W. 28, appears to be a straightforward, consistent and trustworthy witness and we can see no reason, why he should be disbelieved. We are unable to disagree with the conclusion arrived at by the High Court which is the final Court of facts in such matter. We dismiss the appeal."
(vi) Muhammad Ashraf v. The State 1971 SCMR 530 at pp. 352-533.
29. "Malik Muhammad Jaffar, learned counsel for the appellant, has contended that the investigating agency has fabricated the evidence against the appellant. He has further referred us to the statement of Riaz Hussain D.W. 1, Foot Constable attached to the Mayo Hospital and has contended that the name of the assailant was not given to this witness by Riaz Ali. He has further contended that the second injury on the deceased has not been mentioned in the First Information Report. The learned counsel further contended that corroborative evidence has not been produced in support of the evidence of Riaz Ali. None of the contentions raised by the learned counsel has any force.
30. There is no finding of the Courts below that the investigating agency has fabricated the evidence.
31. Riaz Ali P.W. Is a natural witness and his evidence has been rightly believed by the Courts below. It is quite true that the name of the appellant was not given to Riaz Hussain but its absence is of no significance. The Police constable concerned was not expected to take details of the occurrence.
32. The mere fact that it was stated before him that the deceased was injured in a fight does not mean that there was any actual fight between the parties. The conviction of the appellant can be based on the solitary evidence of Riaz Ali if he is found to be a truthful witness and there is no need to have any corroboration of his statement.
33. After carefully considering the evidence of P.W. Riaz Ali we are satisfied that he is a natural witness.
34. He has deposed about the occurrence in a true manner and the learned Courts below were perfectly justified in relying on his statement for the conviction of the appellant. No ground has been made out to interfere with the judgment of the High Court. The appeal is dismissed.
(vi) Fazal Diyan v. The State 1973 SCMR 473.
35. Learned counsel for the appellant argued that it was wholly unsafe to maintain the conviction of the appellant on a capital charge on the evidence of Muhammad Shafi, who was an interested witness, being closely related to the deceased. But the argument overlooks the fact that Muhammad Shafi is a common relation of the parties in that the appellant is the first cousin of the witnesses's father. It is therefore, impossible to suggest that Muhammad Shafi would falsely implicate a cousin of his father to support his own cousin, particularly when there is no suggestion of any animus against the appellant. It is true that Muhammad Shafi was named as one of the accused for the murder of Torai. But the fact remains that the report of that incident was lodged later, after the investigation in the instant case had already started, and Wali Muhammad who lodged the report in that case, knew that Muhammad Shafi had been named as the sole eye- witness in the instant case. Therefore, it is not possible to avoid the impression, that Muhammad Shafi was listed as accused in the other case, in order to nullify the effect of has evidence in this case. In our anxiety to do full justice in the instant case, we requisitioned the file relating to the murder of Torai. Indeed it was on that hypothesis that the learned Judges of the High Court, after a careful analysis of evidence in that case, gave benefit of doubt to acquit all accused in that case, including Muhammad Shafi. That apart, it is not denied that Muhammad Shafi who had his tomato and wheat fields close-by was a natural witness. The fact that no time was lost in making the report at Police Post Hashtanagari also excludes the possibility of false implication.
(vii) Allah Bakhsh v. Shammi and others (PLD 1980 SC 225).
36. "A perusal of the facts of the case, however, shows that the solitary witness sought to be relied upon by the prosecution was a person who had not given any details of the crime in the F.I.R. Made by him, and his ocular account was contradicted by the medical evidence, and there was also doubt as to whether he was, in fact, able to see the assailants from a distance of 200 paces from the scene of murder. In these circumstances, it was held that the High Court appeared to have acted rightly, in accordance with correct principles governing the safe dispensation of criminal justice, in refusing to place reliance on the solitary testimony of one witness. It is clear to us that the conclusion reached in this case is confined to its own peculiar facts and does not purport to lay down any general proposition. The general principle, on the other hand, is that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence and not on its quantity."
37. Respectfully following the above discussions and law enunciated in above quoted reports, we are inclined to observe that even solitary statement of complainant Ghulam Qadir is sufficient to hold the convict responsible for causing murder of deceased Abdul Malik.
9. Additionally complainant after removing the deceased to hospital immediately informed P.W.4 Maulvi Jamaluddin concerning murder of Abdul Malik at the hands of convict Abdul Sattar. This aspect has been unambiguously re-affirmed by said witness. This portion of P.W. Jamaluddin's deposition has not been challenged or doubted during his cross-examination. Besides Fard-e- Biyan was recorded soon after incident as mentioned by P.W. 12 Jamil Ahmed. Name of convict with complete details was clearly mentioned therein. Apparently there was no occasion for manipulation to falsel)r implicate the convict/appellant. All these factors lend support to the version of complainant.
10. As regards illegal procurement of confessional statement Mr. Ehsanul Haq, Advocate canvassed that convict was produced before the Magistrate on 5-7-1987, therefore, his return to police custody seriously affects legality of confessional statement recorded on 26-7-1987. He further submitted that record does not indicate that time for contemplation was afforded to convict.
38. Similarly according to learned counsel necessary questions providing the convict sense of freedom and facility of rethinking about consequences of the confessional statement were not afforded to appellant. He argued that even if confession was believed, independent corroboration was necessary for relying on the same specially when accused had retracted. To supplement his submissions reliance was placed on the observations in cases (i) Hakim Gul v. The State PLD 1964 Pesh. 1 (ii) Nadir Hussain v. The Crown 1969 SC NI R 442 (iii) Dhani Bakhsh v. The State PLD 1975 SC 187 (iv) Mst. Akhtari Begun v. The State PLD 1960 Kar. 797.
39. Minute scrutiny of case file indicates, that on 25th July, 1987, investigating Officer through Exh. P/7-A requested Sub-Divisional Magistrate to record the statement of convict/appellant. This letter was forwarded to EA.C. IV. There is nothing to suggest that convict/appellant was physically produced before any Magistrate. Endorsement on Exh. P/7-A shows appearance of the accused before EA.C.
40. IV only on 26-7-1987 when confessional statement Exh. P/7-B was recorded. Mazhar Mahmood (PW.7), the concerned Magistrate has appropriately explained reasons of his pre--occupation for not acceeding to the request of Investigating Officer on 25th July, 1987. Keeping in view of peculiar circumstances, in our opinion criticism about the confessional statement has no force. Manifestly questions put to convict/appellant before recording confessional statement, suggests genuine effort on the part of Magistrate to satisfy himself about voluntariness of statement given by him.
41. Magistrate has unequivocally explained that sufficient time for contemplation was allowed to convict/appellant, which has not been challenged. Moreover Exh.P/7-B clearly gives reasons for believing the truthful conduct and voluntariness of convict/appellant in making confessional -- statement. Examining the case law referred by learned counsel for convict, it may be seen that principle of law contained in PLD 1977 Kar. 760, stands overruled by Full Bench judgment of Baluchistan High Court reported as Shaukat Saeed v. State PLD 1978 Quetta 1. The principle of law discussed in case PLD 1976 Pesh. 135 holding that mere police custody of accused for 5 days before recording confessional statement does not raise presumption of procuring it through inducement, threat or promise instead of helping appellant, lends support to prosecution. It has been observed therein, that retraction of confession by itself does not nullify its evidentiary value, however nature of corroboration for relying on retracted confession depends upon circumstances of each case. The principle laid in case Dhani Bakhsh v. State PLD 1975 SC 187 suggesting the situation when confession is half inculpatory and half exculpatory has absolutely no applicability to the facts of instant case. Similarly case reported in PLD 1960 Kar. 797 is inapt. However, honourable Supreme Court considering evidentiary value of the confessional statement, M case State v.
42. Minhum alias Gul Hassan PLD 1964 SC 813 authoritatively opined, that judicial confession or extra judicial confession can legally be taken into consideration against maker. Relevant observations are reproduced below:- "As for the confessions, the High Court; it appears, was duly conscious of the fact that retracted confessions, whether judicial or extrajudicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, judicial or extra-judicial whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, CJ. In his commentary on the law of Evidence at page 168 (Vol. 1) `It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true.--- Thus, considering all aspects, the period within which confession was recorded, precautions taken by the Magistrate in so doing coupled with all attending circumstances, the confessional statement Exh.P/7-B made by convict/appellant appears to be true and voluntary. Accordingly the confession in this case by itself constitutes strong basis for holding appellant guilty for the offence.
43. However; it also supplements ocular evidence for confirming conviction and sentence of appellant.
44. 1t was next contended that recovery of pistol from the possession of convict/appellant and crime empty from Vardat was effected in presence of police witnesses who are deemed to be interested.
45. Therefore, relying on the observation (i) Mushtaq Ahmed and 5 others v. State 1976 P Cr. L J 1082 (ii)
46. Muhammad Ismail v. State PLD 1979 Kar. 31 it was argued that version of P.W.6 Amanullah and P.W.9 Abdur Rehman must be disbelieved. It is a matter of fact that convict/appellant has not disputed his apprehension by police from near Sariab Check post. Nothing has been attributed to P.W.6 Amanullah or P.W.9 Abdur Rehman for making false deposition against convict. Factually their version about recovery is corroborated by Investigating Officer (P.W. 12) Jamil Ahmed and (P.W. 13) Muhammad Sharif. No motive as at all been assigned to any of these police officials for fabricating the accusations or unjustifiably attempting to implicate the convict. There is hardly any suggestion made, to challenge recovery of pistol from possession of appellant. P.W. 13 has however, explained that attempt was made to procure private persons, but unfortunately none was prepared to face consequences of hostility. It is noticeable that Superior Courts at various occasions have expressed dissatisfaction over lamentable conduct, general apathy, and lack of civic duty amongst the public by avoiding to appear as witness particularly in murder cases.
47. However, some of the reported judgments in this behalf are mentioned here:-
(i) Yaqoob Shah v. State PLD 1976 SC 73, (ii) Muhammad Iqbal v. State PLD 1976 SC 291, (iii) Mian Khan and others v. The State 1973 P Cr. L J 164 (iv) Ijaz Ahmed v. The State 1977 P Cr. L J 164, (v)
48. Safdar Abbas and others v. State PLD 1987 SC 467.
49. Thus, visualizing various impediments, yet following basic principle of Criminal justice for sifting grain from the chaff, we have to see whether testimony of P.W. 6 Amanullah and P.W. 9 Abdur Rehman have to be brushed aside merely because they are police officials or they could be relied.
50. Preponderant view presently prevailing is, that unless circumstances reflect dishonest conduct of the Investigating agency or definite motive is attributed to police officials for being particularly interested; normally they be deemed quite competent and reliable witnesses. For authority reference can be made to observations in cases following reported matters:-
(i) Safdar Abbas v. State PLD 1987 SC 467; (ii) Khaqan v. State PLD. 1982 Lah. 344 at p.348; (iii)
51. Muhammad v. State PLD 1981 SC 635; (iv) Muhammad Sharif v. State 1982 P Cr. L J 615 (v) Ghulam Ghous v. State 1983 P Ct. L J p.1264, (vi) Qalandar Ali Shah v. The State 1984 P Cr. L J 2275, (vii)
52. Muhammad Ismail v. The State PLD 1979 Kar. 31.
53. In the absence of any substantial reason for doubting recovery witnesses, we are inclined to accept the version of (P.W:6) Amanullah (P.W.9) Abdur Rehman as well as (P.W.12) Jamil Ahmed and (P.W.13) Muhammad Sharif. Thus, recognizing the recovery of crime weapon with live cartridges from the possession of convict as well recovery of empty from the place of occurrence, we unhesitatingly observe that involvement of convict/appellant for the commission of offence in this case is further strengthened.
12. Now coming to reports of (i) Ballistic Expert Exh.P/13-A, Exh.P/13-B and (iii) Chemical Examiner Exh.P/12-A; obviously delay in despatching the same is generally shrouded with doubt.
54. Nevertheless important fact requiring consideration would be whether articles when despatched from police station were kept intact or possibility existed for tampering them. There is absolutely no allegation about tampering with seals or articles subject-matter of aforementioned expert reports.
55. Therefore, delay simpliciter, in forwarding the same would not affect validity of opinion contained in these reports. The report gives positive observation that crime empty was fired from pistol recovered from the possession of convict. Existence of human blood on the clothes is also unchallenged. Therefore, evidence of recovery is corroborative piece of evidence linking convict/appellant with the crime.
56. Now reverting to medical evidence, no doubt post-mortem has not been conducted. But ocular and circumstantial evidence manifestly discloses that deceased Abdul Malik receiving fire shot injury on his head immediately fell down bleeding and expired instantaneously. This position is explained in medical report Exh.P/2-A which is based on external examination of deceased.
57. Defence attempted to argue, that without post-mortem probable cause of death is not determinable. However, in peculiar circumstances of instant case: objection raised by defence counsel is apparently fallacious; because death was direct cause of fire shot injury to the deceased. It hardly needs elucidation that expert evidence is in the nature of supplementary or explanatory to ocular evidence. Even otherwise ordinarily expert's opinion cannot overweigh otherwise strong and convincing direct evidence. We feel that in this matter cause of death being so glaring and obvious, no supporting factors are needed to trace technical reasons for it. Thus, non-conducting of post-mortem does not materially affect the prosecution case.
13. It was next contended that hostility existed between the parties. Factum of strained relations between deceased party and convict side is also admitted by his father Abdul Nabi, who appeared as defence witness. Confessional statement suggested that deceased had misbehaved with sister of convict /appellant, which he seriously grudged. The evidence from both sides shows background of unpleasant relations. Despite these factors nothing concrete was attributed to complainant and P.W. 4 for being interested in falsely involving the convict. Besides statement of complainant was recorded in the hospital with complete promptitude wherein convict was specifically nominated. Undisputedly none from close relations of deceased was present at Quetta.
58. There was no possibility of contacting the relations in village ---Mundarani--- Tehsil Bhag during short interval when police carne to hospital. Therefore question of false implication in our view is ruled out. The proof of motive is not necessary in every case, yet it has been brought on record by the prosecution and confirmed by defence. It has been observed by Honourable Supreme Court in Safdar Abbas v. State P L, D 1987 SC 467 that principles laid down in criminal cases are always founded on facts and circumstances of each case, therefore, cannot be loosely applied in an omni bus manner. Motive or previous ill-will depending on relevant facts adequately support the establishment of guilt and conviction of accused. However, even if motive is not acceptable ocular evidence of unimpeachable quality is sufficient for bringing home the guilt.
14. Following the dictum in aforequoted report suffice it to mention, that basis for appellant's attack on the deceased is proved. From the above discussions we are satisfied that murder of deceased Abdul Malik at the hands of convict/appellant is fully established through strong ocular evidence, corroborated by circumstantial factors supplemented by recoveries of crime weapon and empty and fully confirmed by the reports of experts and voluntary, confession.
59. Lastly the alternate plea of reduction in sentence was pressed. Referring to plea of confession about deceased teasing sister of convict, it was argued that murder had been committed on account of family honour. Apparently there is neither sudden nor grave provocation.
60. Circumstances rather disclose that convict had nursed serious grievance for taking revenge and ultimately caused the murder of deceased Abdul Malik. There is no extenuating circumstance for awarding lesser penalty.
61. For the above reasons, we are inclined to uphold the impugned judgment confirm the sentence of death by hanging awarded to convict/appellant by the trial Court. Consequently appeal is dismissed.
62. Both the matters disposed of in above terms.