' RAJA FAYYAZ AHMAD, J.---The learned Sessions Judge cumSpecial Judge (S.T.A.) Court, Loralai has forwarded this Murder Reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to the convict Wazir Khan son of Muhammad Noor under section 302(b), P.P.C. (as amended) vide judgment, dated 28-3-1997. The appellant/convict has also challenged his conviction recorded by the learned Court vide the aforesaid judgment by preferring separate Appeal No,67 of 1997, therefore, we propose to dispose of the reference and the appeal by this common judgment.
2. It is the case of the prosecution as per F.I.R. (Exh.P.G.), dated. 7-7-1995 lodged by P.W.4 Abdul Salam with the Police Station, Zhob to the effect that he lives with his father in the Zaris garden (Baghicha) and his father works as 'Bazgar' in the garden and at about 8-00 p.m. While he along with his father (Sanzar 'Khan) reached opposite to the College Mohallah after having a round of the garden three persons including the convict Wazir Khan son of Muhammad Noor Levies employee armed with a Klashnikov, were standing in segregated position while the other two could not be identified by the complainant and when the complainant and his father reached near to the convict, the deceased offered 'Salaam on him who in response replied that he will not he spared and fired four shots from his Klashnikov on the father of complainant who fell down on the ground having sustained bullet, while the complainant ran towards the College Colony being horrified, whereas; the convict along with his two companions also made good their escape from the site.
' The complainant P.W.4 describing the motive for the commission of the offence stated in his report that a few days back Wazir Khan (convict) had brought his cow to their house for crossing it with the bull kept by his father and his father had charged Rs,100 for the purpose from Wazir Khan, who on the same day again brought his cow for crossing but his father did not allow for such crossing of the cow due to which exchange of bitter words between the two happened and according to the complainant it was a grudge in the mind of Wazir Khan due to which he along with his two helpers murdered his father by firing. During the investigation consequent upon registration of the case P.W.5 Amir Muhammad Khan S.I.P. Visited the site of occurrence and got the site map Exh.P.H., inquest report Exh.P.I. Prepared. He also secured the blood-stained earth. Two empties of China rifle on a cap and Chaadar from the place of incident vide recovery memos. The blood-stained clothes of the deceased were also taken into possession vide recovery memo.
Exh.P.C. And the dead body were sent to the hospital for autopsy. The convict Wazir Khan was arrested on 21-5-1995 and his father Muhammad Noor was arrested on 4-6-1995 by the police who produced China. Rifle which was taken into possession vide memo Exh.P.B. The empties secured from the site of occurrence and the Rifle so produced was sent to the Ballistic Expert for examination and report and positive report Exh.P.J. Was received from Ballistic Expert. Upon completion of the investigation challan Exh.P.K. Submitted before the learned trial Court i,e, Special Judge (S.T.A.) Court, Loralai. The accused Wazir Khan and his father Muhammad Noor did not plead guilty to the charge, whereupon, during trial the prosecution in support of its case examined five witnesses. The accused Muhammad Noor was not examined under section 342, Cr.P.C. As no incriminating evidence was available against him during trial and was already on bail. The convict Wazir Khan has been examined under section 342, Cr.P.C. Wherein he denial the case of the prosecution and stated that he has been implicated in a false case and that he is innocent. The convict/appellant made his statement on oath in disproof of the charge against him and took the plea of alibi. He stated that on 6-5-1995 i,e, a day prior to the date of occurrence he had gone to Killa Saifullah to see his ailing maternal uncle where he spent three days with him and on the third day of Eid went to Zhob where he allegedly surrendered to the police having come to know about the case registered against him. He further deposed that he did not own cow nor had gone with cow to the house of the deceased and that he has been involved in- a false oase. The appellant produced one witness in defence in support of his plea namely Allah Dad who deposed that on 6- 5-1995 the appellant spent night at his house with him and he was not feeling well, therefore, the appellant remained with him for three days, thereafter he was called back by his father.
' The learned Court vide his judgment dated 28-3-1997 awarded death penalty to the convict/appellant Wazir Khan and Muhammad Noor was acquitted of the charge.
3. We have heard at length the learned counsel for the appellant and the learned Additional Advocate-General in support of their respective contentions in the light of the record of the case.
The learned counsel for the appellant contended and argued that the prosecution has failed to establish the guilt against the appellant beyond shadow of any reasonable doubt and raised the following grounds on which he argued the case seeking for acquittal of the convict/ appellant:---
(i) The solitary ocular witness P.W.4 being the real son of the deceased is an interested and partisan person, is not worthy of implicit reliance in absence of independent corroboration, contradictions and infirmities in his statement before the Court and as to the report lodged by him, the conduct of P.W.4 upon the happening of the alleged event are not natural and reasonable, younger age of the complainant contributed for confirmation of his deposition, the deposition of P.W.4 has given rise to more question than answered in support of prosecution case. Identification of the appellant by P.W.4 (complainant) in the moonlight is highly doubtful as in the garden which according to the learned counsel almost was covered with bush and trees and the complainant to the extent of the weapon of offence, described by him stands contradicted by the alleged recovery of empties and the rifle.
(ii) The testimony of P.W.4 in the circumstances of the case requires exceptionally strong corroboration coming from unimpeachable source or supported by strong circumstantial evidence and in absence of such evidence (wanting in the case) the conviction is not sustainable.
(iii) Motive set up has not been established except to the extent of the bald statement of P.W.4.
The trivial alleged dispute not sufficient and justifiable for committing such an alleged grave offence after some days.
(iv) The prosecution evidence is scarce, scanty and not qualitative.
(v) Testimony of P.W.2 A.S.-I. And P.W.5 Investigating Officer S.H.O. Not worth reliance.
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(vi) Site plan not duly proved, which also does not indicate the house of the deceased and complainant. Inspection note of the site of occurrence wanting. The site plan was inadmissible in evidence.
(vii) Inquest report contains false entry of the place where the dead body was shown to be lying.
(viii)Contradictions in the statement of P.W.2, 3 and 5 and due notice of the infirmities of the pr'osecution case has not been taken.
(ix) The defence evidence has been wrongly and illegally disbelieved, conduct of the appellant prudent, natural and rational as per.His plea, the defence has caused in creating reasonable doubt on the prosecution case.
(x) The prosecution has failed to discharge the onus successfully.
(xi) It is a case which amply justifies for extending benefit of doubt to the appellant.
' The learned counsel for the convict/appellant in support of contentions relied on the reported judgments (1) PLD 1978 SC 114, (2) 1971 SCM R 432, (3) 1979 SCM R 214, (4) 1976 PCr.LJ 243, (5) PLD 1963 SC 40, (6) PLD 1973 SC 321, (7) PLD 1976 SC 241 + 629, (8) 1973 PCr.LJ 904, (9) PLD 1963 SC 17, (10) PLD 1970 SC 10.
The learned Additional Advocate-General controverting the arguments of the learned counsel for the appellant submitted that there is no material infirmity, discrepancy and material contradiction in the prosecution case and the onus has been successfully discharged by the prosecution. The motive has duly been established against the appellant for commission of the alleged offence and the learned trial Court according to him has properly appraised the evidence available on record for good reasons and the defence evidence has not been relied upon by the learned trial Court due to its being afterthought and argued that the sentence awarded by the trial Court be confirmed in view of the facts and circumstances of the case and the appeal against conviction of the appellant thus liable to be dismissed.
4. 't he prosecution case is based on the following pieces of incriminating evidence.
5. P.W.1 Dr. Muhammad Akbar, Medical Officer, Zhob stated that on 7-5-1995 at about 8-30 p.m.
Dead body of Sanzar Khan was brought to the Hospital for examination and report and he found the following external injuries on the dead body:
(i) Entrance gun shot wound on the forehead circular in shape 1-1/2 inch in diameter.
(ii) Exit gun shot wound on the occipital region. Brain matter out. Bleeding from ear and nose. Oval in shape, one inch in dia meter.
' Opinion. Death was caused due to the injuries to the vital organ i,e, brain, brain matter out, excessive hemorrhage, shock and death.
' The witness produced the death certificate Exh.P.A. And has not been cross-examined by the defence.
' The post-mortem of the deceased has not been conducted and the prosecution evidence on the point is silent as to why autopsy of the deceased was not done. It appears that the Doctor on account of the bullet injury to the brain might have not thought it fit to further ascertain the cause of death by conducting post-mortem or otherwise under, the orders of the Magistrate on the request of the complainant and other legal heir of the deceased.
' The gun shot injury to the brain one of the most vital organ of the body detailed in the certificate Exh.P.A. Containing definite opinion of the Medical Officer about the cause of death duly proved in Court to be due to the injuries to the brain, brain matter out, excessive haemorrhage, shock and death establishes the fact that the gun shot injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. The testimony of the Medical Officer was not challenged by the defence by not cross-examining him, therefore, it shall be deemed to have been accepted by the defence as well. It is abundantly established by the Medical evidence that the deceased died due to fire arm injury which in the ordinary course of nature was sufficient to cause death.
6. P.W.4 who is the son of the deceased and solitary witness of the occurrence has deposed before the Court that he and his father while were looking the wheat crops convict Wazir Khan who was armed with KlashnikOv came to the garden along with two other persons and upon saying opened fire on his father who resultantly died, they fled from the site and he did not identify the other two persons. According to the witness the accused had after having got crossed his cow by their bull paid Rs,100 went back and after some time again the accused come to their house with the cow and asked his father for reclosing with his bull but his father refused and the accused got raged and went back due to which he has murdered his father. The witness produced his report as Exh.P.G. While being cross- examined the witness stated that his house is situated in the middle of the orchard and there is no other house in the orchard and he ran away towards the road after his father was injured. The witness admitted that people attracted to the site after the accused ran away and the people took his father to the hospital while the Medical Officer had informed the Police. Further in the cross-examination the witness stated that at night time the police came on the spot and he showed the place of occurrence to the police where the accused had left his 'Chaadar' and cap. He further admitted that it was semi dark but there was moon light at the time of incident. The witness denied the suggestion that the accused was not present at the place of incident nor was armed with Klashnikov. The witness also denied the suggestion of the defence that his father was killed on the road by unknown person and further the witness denied the defence suggestion that he has nominated the accused at the instance of Amir Muhammad Sub- Inspector Police and that the accused had no cow nor he has brought the cow for crossing to their house.
' In the given evidence of P.W.4 it has been proved that the house of the witness and of his father where they both were living was situated in the middle of the 'Baghicha' and the area of the 'Baghicha' also contained wheat crops, therefore, the presence of this P.W. And of his father in the Baghicha was quite natural and through cross-examination the version of the presence of P.W.4 at the eventful time with his father could not be impeached. It has also come on record during cross- examination that the house of the deceased is situated in the middle of the 'Baghicha' (mini garden) and there is no other house in the Baghicha', therefore, in the given circumstances the presence of any person at the relevant time would not have been in the ordinary course to be reasonable or convincing thus the P.W.4 was the only available witness of the occurrence and the contention of the learned counsel for the appellant that no independent witness has been produced by the prosecution, to our mind in the circumstances is of no substance. The testimony of the ocular solitary witness finds direct and independent corroboration from the medical evidence of P.W.1 discussed hereinabove. Mere relationship of P.W.4 (son of the deceased) will not in the ordinary course blend his testimony to be that of an interested or partisan in absence of any strong reason, enmity or motive. It is hardly in the circumstances of the case convinceable that the son of the deceased will let off the real culprit and will an innocent person instead in such a serious crime and that too for no motive. The contention of the learned counsel that P.W.4 is the interested witness and hence needs be supported by strong independent corroboration through unimpeachable source in removing the inherent doubt of the ocular testimony of P.W.4, no doubt as a Rule of prudence in cases where the ocular testimony is based upon the evidence of the interested or partisan person/s, the rule has to be strictly observed for the safe administration of criminal justice. As above held the testimony of P.W.4 simpliciter cannot be termed to be that of an interested person, therefore, the case law i,e,'Thoba and another v. The State PLD 1963 SC 40 has no direct application to the evidence of P.W.4, In another case-law cited by the learned counsel for the appellant, Bagh Ali and four others v. The State PLD 1973 321 SC it has been held that: "The appraisement of evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the c -e where there is total absence of physical circumstances to connect the accused person with the crime, and there is a background of enmity. In such a situation the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence necessarily create."
' The given situation noticed and visualized necessitating in laying down the Rule quoted in the abovementioned authority is wanting in the case in hand. The defense has failed to bring any material or reason on record for treating the testimony of P.W.4 to be that of an inimical or interested person requiring for the full application of the Rule laid down by Honorable Supreme Court in the above referred two authorities. Merely on the ground of relationship as liid down in the case Muhammad Iqbal alias Bala v. State (1994 SCM R 1) a witness does not become an interested witness.
' The defence has given a suggestion to P.W.4 during cross-examination that he has nominated the accused at the instance of Amir Muhammad S.I.P. (P.W.5) which has been denied by the witness to be correct. The defence has not given or even explained by the accused in his statement on oath as to the existing of any motive on the part of P.W.5 S.I.P. To get the accused involved in the case through P.W.4 neither even the P.W.5 has been on this plea cross-examined nor such a suggestion given to the witness by the defence and the suggestion given to P.W.4 by the defence side appears to have been made without any basis therefor.
7. The learned counsel for the appellant submitted that the deposition of P.W.4 with that of his report Exh.P.G. Is inconsistent, suffers from infirmities and discrepancies, therefore, is immune of implicit reliance without corroboration by reliable evidence and in support of his contention relied upon the case reported in PLD 1978 SC 114. The learned counsel to support his contention referred to comparative portions of the statement of P.W.4 to that contained in the report lodged by him. In his report the witness stated that he was having round of the Baghicha with his father while in his deposition before the Court stated that he alongwith his father were looking the wheat ,crops; in substance is neither contradictory nor an infirmity in our view as one while taking round of the Baghicha can simultaneously look after the wheat crop of the Baghicha. The stated omission in his deposition as compared to that contained in the report that when "they reached near to College Mohalla" does not affect the intrinsic value of the statement of P.W.4 nor on this point the witness was confronted by the defense and this omission by itself does not render the version of the witness as discrepant or unreliable and the stated inconsistencies/ discrepancies have been pointed out by the learned counsel for the appellant in the report and deposition of P.W.4 as follows:---
(i) F.I.R. "three persons were standing separately" deposition - accused Wazir Khan came to the Baghicha along with two other persons.
(ii) F.I.R. When he alongwith his father reached near to Wazir Khan my father put 'Salaam' to him deposition - accused was armed with Klashnikov and after saying ' Assalamo-ElekumI opened fire on his father
(iii) F.I.R. On my father one after the other four fires were made depoition - The accused Wazir Khan fired at my father.
' The comparative alleged inconsistency reproduced at No,(i) above in our estimation does not appear to be an infirmity or discrepancy in the testimony of P.W.4 wherein he deposed that "the accused Wazir Khan came to the Baghicha alongwith two other persons" is based upon his physical knowledge that "three persons were standing separately" in the Baghicha. The stated infirmity reproduced at No,(ii) above does not come in conflict inter se, the substance on the point is evident that tiring was made by the appellant after saying 'Salaam' by the deceased and in his deposition before the Court that after saying Asslamo-Elekum' the accused opened fire at his father does not indicate that 'Salaam' was given by the accused. The stated discrepancy reproduced at No,(iii) above is in fact not so, the witness in his deposition has mentioned only of the firing made by the appellant on his father, whereas; in the F.I.R. Has given the detail of such firing. In substance the aforementioned omission or the sated infirmities from whatever angle seen does not render the testimony of P.W.4 as altered in its instrinsic value and effect rather we are of the considered opinion that the testimony of the ocular witness does not suffer from any improvement, material contractions infirmity or any discrepancy which goes to the root of the prosecution case Mr. Zulfiqar alias Bhutto v. State (1995 SCM R 1668).
The testimony of the solitary ocular witness is straightforward and confidence inspiring, free from any material contraction or discrepancy therefore, reliance can safely be placed on his evidence.
The younger age i,e, 13 or 14 years of the complainant at the time of the incident by itself is no disqualification to his testimony which if otherwise is confidence inspiring. Conviction even in murder cases can be based on the testimony of a single witness if Court is satisfied as to such witness being reliable as has been held by18 the Honorable Supreme Court in the case Allah Bakhsh v. Shanuni and others (PLD 1980 SC 225). In the instant case the testimony of the solitary witness finds support from the medical evidence with regard to the manner of murder which has not been disputed even by the defence. To the questions put by the defence counsel to P.W.4 the witness replied that the accused had left his Chaadar and the cap and that he had shown the place of incident to the police who recovered the articles from the said site and these facts have been brought on record by the defence through the mouth of the solitary eye-witness gets further support of the recovery memo. (Exh.P.F.) of the Chaadar and cap produced by P.W.3 Nizamuddin head constable. The recovery memo indicates that these articles were pointed out to the police by the complainant (P.W.4).
' The contention of the appellant's counsel that the identification of the convict in the moonlight by the complainant was difficult and highly doubtful. The complainant in report Exh.P.G. Has not only given the name of the appellant rather has mentioned his caste, parentage and occupation and about the other two he stated that he -could not identify them, thus it is evident that the appellant was known to the witness previously and as per report and deposition of the witness the convict had come to their house for crossing his cow with he bull twice, therefore, there is no reason to believe that the convict was not known to the complainant or mistakenly identified. The complainant very fairly stated that he did not identify the other two persons accompanying the convict further lends support to the> prosecution version about exact identification of the appellant who as such has been categorically and explicitly nominated by the complainant. In absence of any strong reason or enmity there is no substance in the argument that despite lacking proper identification of the appellant by the complainant he has been nominated and implicated in the case. To .a question by the defence the witness stated that it was moonlight at the time of incident and semi dark, therefore. By visualising the scene of moonlight an argument has been advanced on the plea that the identification of the convict was difficult and doubtful, which in fact has no basis. It is not the case of the prosecution that the witness had identified the appellant in the moonlight rather he nominated the appellant who was already known to him. The distance betWeen the witness, the Culprit and the object in such a situation could be very relevant for the purposes of identification but this aspect being so built up during arguments, has not been attended to during trial by the defence. The case law 1971 PCr.LJ 904 cited by the learned counsel is distinguishable on facts, in the cited case the question of identification of the accused arose on account of the murder having committed in the moonlit night under shade of tree. In the instant case the appellant was known to the witness already and there is no evidence that the culprit was under, any shade or at such a distance from where he could not have been identified. Mst. Shamirn Akhtar's case reported in (PLD 1992 SC 211) could be referred conveniently on the point where also the identification of the accused in the torch light by the complainant arose and it had been held by the Honorable Supreme Court that the question of wrong identification in torch light did not arise as the accused was already known to the complainant.
8. The learned counsel for the appellant candidly argued that the motive set up in the report by P.W.4 has not been established except to the extent of the bald statement of the complainant. This argument put forth does not carry the weight as the learned counsel conceded to the fact that the alleged motive finds support from the statement of the complainant. In the report lodged by P.W.4 it has been stated that Wazir Khan had brought his cow to their house for crossing her with the bull kept by his father and his father had got Rs,100 for such crossing but on the same day he again brought the cow for re-crossing but his father refused resultantly bitter words were exchanged between the two and this event was in the mind of Wazir Khan and as a consequence thereof he with the help of two other persons murdered his father. While in his deposition before the Court the complainant stated that after some time the accused came back and asked his father to permit him for the re-crossing of the cow with his bull but his father refused resultantly the accused became angry and went away, due to this reason he murdered his father. Keeping in view the stated motive of the crime as contained in the F.I.R. To that deposed in the Court, is one and the same in substance except the words expressed and altered, which is a natural phenomenon of human conduct and behaviour as it is nevertheless possible in the ordinary course of nature in a humanly conduct to narrate in verbatim what a person has stated years before on a particular point. The narration of facts in the deposition by P.W.4 remains the same as made in the report by.
Him. In the given circumstances there could have been so evidence of the motk e pertaining to the event having occurred in the presence of the complainant alone, we thus are of the considered view that the motive asserted in the report had the proposed and required proof the event leading to the incident. The contention in this regard made by the learned counsel does not merit the objected consideration. The proof of motive requires no special rule of evidence nor there could be any special mode or standard of the required evidence to prove such an alleged fact of motive, and it could be proved through evidence that may be needed/required for proving as any other relevant fact. Motive is a phenomenon of the mental state of a person which makes him to act in a particular manner in conducting himself due to any reason, cause or self-motivated and pursuant thereto either immediately or thereafter such person acts in a particular direction and no hard and fast rule can be laid down with regard to formation of creating motive. Sometimes it is noticeable on account of the conduct of a person, at times it due to certain existent facts or background leading to the commission of any illegal act and even the existence of motive can be perceived or conceived which may move a person to act in a particular manner. The question of motive is always a question of fact which varies from case to case and depending upon the facts and circumstances of a particular case; just like in the manner as the human being varies and conduct themselves. The submission of the learned counsel that the alleged motive being of a very trivial nature could not have led to the commission of the stated offence. This objection hardly appeals to the reason as for the human conduct of the affairs no standard or cause could be determined to be sufficient to move a person to act or not to act in a particular manner. The adequacy or otherwise of an alleged motive could never be the foundation to determine or settle the sufficiency or insufficiency for the commission of any illegal act or omission. Serious crimes are committed where there could be slight motive or even committed on the basis of sudden or momentus impulses and there are even cases where motive could not be or having not been found or discovered.
' The argument so advanced goes to the other way round as well as the trivial dispute of the bitter exchange of words or the anger so ensued between the deceased and the appellant in our opinion lays no reason to 'the complainant to falsely implicate the appellant for the murder of his father as against the real culprit. As already observed hereinabove that the attributed motive has been proved by the prosecution, therefore, the reported case law i,e, Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCM R 214 and Hakim Ali v. The State and another 1971 SCM R 432 is of no avail to the raised contention wherein it has been respectively held that motive for crime put forward by the prosecution not proved at all ocular evidence required to be scrutinized, in the circumstances with great caution and that once if a motive has been set up but not established, the prosecution must suffer consequences and not the defence. The other reported judgment reported in 1976 PCr.LJ 243 on the plea of motive raised by the learned counsel renders no assistance in view of the fact of the disclosed motive having been proved by the prosecution.
9. In view of the contentions raised by the learned counsel for the appellant noted in para. 3 (v) (vi)
(vii) (viii) (supra) while considered in the light of the record of the case we found that the evidence of P.W.2 Abid Hussain Shah, A.S.-I. Police Station Zhob with regard to the taking into possession of The rifle vide memo. Exh.P.B. In his presence produced by the father of the convict and evidence in the point of P.W.5 Muir Muhammad Khan S.l. Police/Investigating Officer of the case has been disbelieved and consequently the report of the Ballistic export Exh.P.J. Tendered by P.W.5 treated to be inconsequential. We have re-appraised the evidence independently on the point of the recovery of the weapon produced by the father of the convict in the police station on 7-5-1995, has rightly been not treated to he the weapon of offence for want of any nexus with the crime and consequently the report of the Ballistic expert resultantly of no avail to the prosecution.
' The evidence of P.W.2 since pertain only to the extent of the production of the rifle as aforesaid, therefore, the plea that he contradicts P.W.5 has no force.
' P.W.3 Nizamuddin head constable police deposed that he alongwith Amir Khan, SIP and other police staff went to the Civil Hospital Zhob where the Medical Officer handed over the blood- stained shirt, turban and Chaadar of the deceased to P.W.5 which was taken into possession vide memo and he produced the recovery memo. Of the blood-stained clothes as Exh.P.C. The witness further deposed that from the hospital they went to the place of incident and Amir Khan (P.W.5) recovered the blood-stained earth vide memo Exh.P.D. According to the witness two empties of rifle rounds were also recovered from the said site and produced the recovery memo thereof as Exh.P.E.
In addition to the recovery one Chaadar and cap from the place of occurrence vide Exh.P.F. In the cross-examination the witness stated that at 8-30 p.m. They went to the Hospital and the dead body was lying there and from the hospital they went to the place of incident. The witness replying to the questions in the cross-examination stated that the complainant took them to the site.
' P.W.5 the S.I.P./Investigating Officer stated that he consequent upon the investigation of the case entrusted to him alongwith the police staff visited the place of occurrence, prepared the sketch of Wardat site, examined the dead body, and produced the inquest report as Exh. P/i and thereupon sent the dead body to the hospital for examination and report. According to P.W.5 two empties of China rounds were also recovered from the scene of occurrence besides the blood-stained earth securedvide their respective memos: He further deposed that Chaadar and cap was also recovered from the said site and recovery memo. Prepared therefor. The witness stated that the blood-stained clothes of the deceased were also taken into possession vide memo Exh.P.C. And he arrested the appellant on 21-5-1995. He also took into possession the China rifle produced by the father of the convict vide memo Exh.P.B. And sent the rifle and empties to the Ballistic expert for examination and report. The report of the expert produced by him as Exh.P.J. And finally he submitted the challan Exh.P.K. In the Court.
' In the cross-examination on material points the witness stated that at 8-45 p.m. They reached the place of occurrence, there were no houses near to the place of occurrence. He denied the suggestion that the empties were provided by the complainant to the police and he did not put any identification marks on the empties and also denied the suggestion that he had not gone to the place of occurrence. He did not admit the suggestion that nothing was recovered from the site of incident.
' The recovery of the empties from the site according to the case of prosecution is meant to corroborate the alleged factum with regaid to the deceased having been fired upon. The impeached testimony of the Medical Officer (P.W.5) confirms and establishes the fact that the deceased died due to the bullet injury sustained by him on his fore-head, therefore, the additional corroboration of such a fact proved or otherwise will have no material bearing with regard to the use of a particular fire-arm weapon. The recovery of the G empties, however; has been established by the prosecution. The empties according to P.W.3 head constable police were recovered from the site and were sealed into parcel which he duly exhibited in Court and his testimony on the point could not be impeached. P.W.3 during cross-examination stated that the complainant took them to the place of incident and also this fact was again got confirmed in the cross-examination on the complainant who stated that he showed/pointed out the said site to the police, therefore, the contention of the learned counsel that contents of Exh.P.E. (empties) with regard to stated pointation of the empties by the complainant is wanting through the mouth of the complainant, appears to be of no substance.
' The-objection of the learned appellant's counsel that the empties of China rifle and that of Klashnikov empties do not match inter se but the learned counsel did not refer to any calibre of the weapons being different or that the calibre of the empties recovered cannot be fired from such shown weapon nor any question on the point so raised before us was put to either of the witnesses.
In absence of any proof to the contrary or reference available on the subject it cannot be legitimately inferred that rounds of a China rifle (empties whereof recovered from the site) is not fire-able from a Klashnikov. The recovery of the tire-arm empties from the place of occurrence coupled with the Medical evidence in the light of the evidence of the complainant establishes the fact that the empties are of the rounds fired upon deceased in absence of any evidence to the contrary, hence we find the plea so raised in this behalf to he devoid of any basis.
10. We, however, do agree with the learned counsel that the evidence of P.W.3 and P.W.5 with regard to inspection of dead body by the Investigating Officer at the place of incident to be highly doubtful and contradictory including the entries of such an inspection of the dead body having been carried out at the hospital incorporated in column No,1 of the inquest report Exh.P.I. The statement of P.W.5 that he inspected the dead body at the place of incident and thereupon sent it to the hospital in view of the relevant entry in the inquest report and the statement of P.W.3 becomes not true and reliable but all the same the Court is to sift grain from chaff to find out the truth and the falsehood of the part of such statement has to be segrated from the truthfully part of evidence in order to come to a just and factual aspect of the case; which application of the rule will not by itself destroy the truthful part of the evidence of such witness. The remaining contents of the inquest report particularly of the indicated injury in column No,10 of the report gets an absolute corroboration from the Medical evidence. The defence has not challenged the death of the deceased having been caused due to the fire arm injury, therefore, the objection of the learned counsel in this regard is of no avail to the appellant.
' The recovery of 'Chaadar', cap and the blood-stained earth also help the prosecution as a circumstance of the happened event and the subsequently taking into possession of the blood- stained clothes of the deceased in the hospital also to he a relevant fact duly proved. We not agree with the learned counsel that the site plan Exh.P.H. In absence of the inspection note of the site is inconsequential. The site map in fact is not substantial evidence but for better understanding of the site pf incident that may be noticed it is to be sketched out by the officer making inspection of the site. The site map Exh. P/H has not been prepared by the Investigating Officer nor even contains his signature rather prepared by a Patwari (not examined) by the prosecution renders no help to the prosecution nor creates any benefits to the defence.
11. .The plea, of the learned counsel that the defence evidence has dislodged the prosecution case due to the reasonable doubt of probabilities having been created by it and that the defence evidence has not been placed in juxtaposition to the prosecution case under the well-established Rule of the criminal justice; which according to him has resulted into serious miscarriage of justice though the appellant as such deserved acquittal. We have in order to satisfy ourselves about the impact and the possible effect of the defence evidence independently re-appraised it .In the light of the prosecution evidence. It has been suggested to the P.W.4 (the complainant) in the cross- examination by the defence counsel that the accused was not armed with Klashnikov nor he was present at the ' Wardat'. These two contradictory suggestions to the solitary ocular witness, about the defense led by the convict with regard to the plea of alibi strongly indicates that the defence was quite shaky and inconsistent to its own plea and thus were not definite about the defence line and the suggestion to P.W.4 that the accused was not armed with Kalashnikov amply supports the fact that the accused as well as the complainant was present at the site of incident. The appellant in his statement on oath under section 340(2), Cr.P.C. Stated that he having come to know about the registration of the case surrendered himself to the police also seems to have been an afterthought idea as the defence counsel has not suggested to the P.W.5 (who deposed about the arrest of convict having made by him on 21-5-1995) that the appellant had surrendered himself to the police on or about 9-5-1995. According to the statement 'of the appellant on oath he went to Killa Saifullah on 6-5-1995 to see his ailing maternal uncle and spent three days in his house and on the third day of Eid he went back to Zhob and when came to know that the case has been registered against him he surrendered to the police. The convict further stated that he did not own any cow nor had gone to, the house of the deceased. The D. W.1 the maternal uncle of the appellant has supported the convict, in his depositing to the effect that the appellant spent night of 6-5-1995 with him in his house and as he was not feeling well, therefore, the accused had gone to see him and remained with him on Eid. Thereafter, his father called him to the house.
' P.W.5 the Investigating Officer has deposed that ,the accused Wazir Khan was arrested by him on 21-5-1995 not that this part of the statement of the P.W. Was not challenged by the defence, neither any suggestion with regard to the stated surrender of the appellant to police has been given as per defence version nor even if the light of the defence plea any specific date of such surrender has been suggested to P.W.5, inasmuch as; to challenge the version of P.W.5 with regard to the arrest of the appellant, the defence could have called for the record of the police to support his plea or nullify the stated fact that the date and arrest of the appellant. According to D.W.1 the appellant was called back by his father, who also faced the trial but was on bail and not examined under section 342, Cr.P.C. For want of any incriminating evidence against him being available during trial of the case, was also not examined in support of the version of D.W.1 about his having called back the appellant from Killa Saifullah situated at a distance of 100 miles (as disclosed by the appellant during cross-examination) from Zhob. According to the defence version the appellant on the 3rd day of Eid returned to Zhob, remaining there for three days and on 6-5-1995 he went to Killa Saifullah. The Eid Holidays (Eidul-Azha) commenced with effect from 10-5-1995 to 13-5-1995, therefore, the defence evidence that the appellant spent Eid with his uncle or of his return on the 3rd day of Eid, is totally baseless and incorrect. The defence evidence having kept in juxta-position appears to us in the light of above discussion to be not probable rather is an after thought one having no legs to stand upon. There was no reason for the complainant to falsely nominate the appellant for the serious charge of murder and to let off the real culprit instead. The specific defence plea brought in evidence has not even been slightly indicated in examination of the appellant under section 342, Cr.P.C. Nor even suggested so to P.Ws. 4 and 5 which has rightly been discarded by the learned trial Court to be not confidence inspiring and after thought. The reported judgments cited by the learned counsel i,e, 1979 scmg 214 and PLD 1976 SC 241 and 629 in view of the defence evidence and in support of his contention that the prosecution case suffers from inherent doubts, the reported judgments i,e, PLD 1963 SC 17 and PLD 1970 SC 10 do not attract in view of the prosecution having established its case beyond shadow of any reasonable doubt against the appellant. We have independently and in the light of the contentions raised before us by the learned counsel for the parties reappraised the evidence in the case and have come to the conclusion that the contentions raised by the learned counsel for the appellant do not render the impugned judgment as not sustainable.
For the foregoing, reasons. Reference sent by the learned Sessions Judge/Special Judge, (S.T.A.)
Court, Loralai is accepted. Death sentence awarded to the appellant Wazir Khan son of Muhammad Noor vide judgment, dated 28-3-1997 is hereby confirmed. Consequently the appeal filed by the convict/appellant is dismissed.