1. AMAN ULLAH KHAN. J.---This Appeal is directed against the judgment dated 4-8-1999, passed by learned Additional Sessions Judge-II, Quetta whereby respondent Jehanzaib has been acquitted of the charge, under section 302, P.P.C. In brief; the prosecution case is that, on 2-8-1998, while complainant Durran Bibi, was sleeping in her house alongwith her daughter Mst. Siddiqa, situated at Chaman Gali, Balochi Street, Quetta, at about 4-00 a.m. She woke up on hearing gun shot reports and saw respondent Jehanzaib, holding a gun in his hand who fired at Mst. Siddiqa. She however, ran after Jehanzaib, but he succeeded to decamp from the place of incident in a red car, parked in the street. Thereafter she immediately went to the house of her son Nizamuddin and informed her daughter Dr. Sakina, that Jehanzaib had fired at Mst. Siddiqa, whereupon they immediately came to the house of complainant and shifted the injured to the hospital, where she was admitted in the Ward. On receiving such report, at 4-30 a.m. The Police personnel came there and recorded Fard-e-Biyan (Exh.P/B) of the complainant and same was sent to the Police Station, Gawalmandi for registration of case. Investigation of the case was entrusted to P.W.14 Abdul Rauf. He on receiving information about the incident, went to the Civil Hospital, Quetta and found Mst. Siddiqa in an injured condition in the Casualty Ward, lying unconscious. He recorded Fard-e-Biyan. 'Thereafter went to the place of incident and in presence of witnesses, recovered four empties and three bullet leads vide Memo.
2. (Exh.P/11-B). He also took into possession a piece of blood-stained quilt, cover of pillow, cushion etc. Vide memo. (Exh.P/11-C). He prepared site plan (Exh.P/11-A) as well as site inspection Report. The deceased succumbed to the injuries on-the same day. As such, Investigating Officer also prepared the Inquest Report (Exh.P/11-E), arrested the accused-respondent and recorded statements of witnesses and that of one Abdul Baqi under section 164, Cr.P.C. Later on he was transferred, and he handed over the papers of investigation to S.H.O., Qasim, who initially submitted Interim Challan (Exh'.0P/15-A) and thereafter final Challan (Exh . P/15-B). Charge was framed by learned Additional Sessions Judge-II, Quetta on 12-10-1998, which was refuted by accused-respondent. As such, to prove the accusation, prosecution examined the following witnesses:-- P.W.1. Dr. Muhammad Amin Mengal examined the deceased and found following injuries on her person:--
(1) Entrance wound on left cheek 1/2 c.m. Circular and irregular edges bleeding from nose and right ear.
(2) Exit wound on left ear 3 x 4 c.m. Circular and irregular edges.
(3) Entrance wound on abdomen at right hypochondria circular and irregular edge 1/2 c.m. In diameter.
(4) Exit wound on left lower lateral aspect of chest 3 x 4 c.m. In diameter circular and irregulai margins.
(5) Entrance wound on left side of chest at 5th inter coastal space lateral to left sternal border i,e, cardiac area 1/2 c.m. In diameter circular and irregular margins.
(6) Exit wound on the left side of back of chest 3 x 4 c.m. In diameter circular and irregular edges. Probable cause of death of deceased is due to fire-arm (bullet injuries) injuries, excessive haemorrhage and shock. He produced the Death Certificate as Exh.P/1-A. P.W.2 Mst. Durran Bibi is the complainant and only sole eyewitness. She reiterated the contents of the F.I.R. And stated that on 2nd August, 1998, at 3-00 a.m. She was sleeping in the house and woke-up on hearing the gun shot reports and saw the accused-respondent in the courtyard of the house with a pistol in his hand, who made firing upon her daughter Mst. Siddiqa. She tried to run after him, but he decamped from the place of incident in a red car. Thereafter she informed her son Nizamuddin and daughter Dr. Sakina, who took the injured to hospital where she succumbed to the injuries. P.W.3 Dr. Mrs. Arifa produced certificate Exh.P/3-C, which shows that the deceased gave birth to a baby. P.W.4 Nizamuddin and P.W.5 Dr. Sakina gave similar statements, deposing that on 2-8-1998, at about 3-45/4-00 a.m. Their mother Mst.Durran Bibi informed them, that accused-respondent had fired at the deceased and thereafter they rushed to the house of deceased, which is situated nearby and took the deceased to hospital, where she succumbed to the injuries. P.W.6. Jehangir Khan, Patwari prepared the site plan Exh.P/6-A. P.W.7 Mst. Arifa narrated about the incident and deposed that she saw the accused respondent before the incident in a red car. P.W.8 Syed Abdul Jabbar, Chemical Analyser, carried out chemical analization of blood-stained quilt and issued Certificate Exh.P/8-A. P.W.9 Syed Zulfiqar Hussain, M.F.C., recorded confessional statement of P.W. Mohim Abdul Baqi and produced the statement and Certificate appended thereto as Exh.P/9-C & D. P.W.10 Abdul Rauf, is the marginal witness to the recovery of blood-stained torn shirt of deceased taken into possession vide Memo. (Exh.P/10-A) and Medical Certificates, which were taken into possession by the S.H.O. Vide Memo. Exh.P/10-B. P.W.11 Muhammad Aslam. S.-I. Is marginal witness to the recovery of four empties, three bullet lead, quilt, pillow, cushion etc. Effected vide memos. Exhs.P/11-B & C P.W.12 Naveed narrated about the incident, whereby he has taken the sister of deceased and her aunt to a house, situated in Satellite Town, Quetta.
3. P.W.13 Abdul Haleem, narrated about the incident, whereby the accused-respondent had come and enquired about the health of Salahuddin, brother of deceased. P.W.14 Abdul Rauf, A.S.-I. Carried out the investigation of case. P. W.15 Muhammad Qasim, S.H .0., obtained four Medical Certificates of the deceased and submitted Interim and Final Challans as Exhs.P/145-A & 15-B. Thereafter prosecution closed its side and accused-respondent was examined under section 342.
4. Cr.P.C. Wherein he denied the prosecution case. He also recorded his statement on oath as envisaged under section 340(2), Cr.P.C. And in defence produced D.W.1 Dr. Muhammad Hanif and D.W.2 Bismillah. D.W.1 deposed that respondent was suffering from back pain and he gave him Injection and some medicines and advised him for rest. After assessing the evidence on record, the learned trial Court, acquitted the respondent of the charge, vide impugned judgment dated 4-8-1999. Hence this appeal against acquittal. We have heard Mr. Amanullah Kanrani, learned counsel for appellant, Mr. Akhtar Zaman, learned counsel for accused-respondent and Mrs. Ashraf Abbas, Advocate who appeared for the State. Learned counsel for appellant contended; that there is positive evidence of complainant Mst.
5. Durran Bibi, who had seen the respondent, while firing upon the deceased. The F.I.R. Was lodged promptly. Even prior to taking the deceased to hospital, she had disclosed the name of accused- respondent to P. Ws. Nizamuddin and Dr. Sakina. According to learned counsel, the judgment of trial Court is based on misreading of evidence on record, which has caused injustice to the case of appellant. Learned counsel Mr. Akhtar Zaman, argued, that accused-respondent has been acquitted by the competent Court of law, after proper appreciation of evidence, thus no interference is called for, in an appeal against acquittal. He further contended that the statement of P.W.2 Mst.Durran Bibi, being interested witness is not reliable and further same does not find corroboration from any other piece of evidence. Learned counsel for the State, however, opposed the appeal and supported the acquittal order of accused-respondent. Admittedly the principles regarding appreciation of evidence in an appeal against acquittal are different from that of an appeal against conviction. Though the facts of each case vary from the other, but the Hon'ble Supreme Court in the case of Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 had laid down certain principles to be considered, while dealing with an appeal against acquittal. For sake of convenience the same are reproduced hereinbelow:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other case-laws on the question of setting aside an acquittal by this Court. They are as follows:--
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
6. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carried with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus, lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (6) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason.
(4) The Court would not interfere' with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other A purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
7. Before dilating upon the merits of case, it is now well-entrenched principle of law, that conviction can be based on the statement of solitary eye-witness, provided; the same is confidence-inspiring and the intrinsic worth of the same rings true and satisfies the conscience of the Court. It has been consistently held by the superior Courts, that it is the quality of the evidence which is to be seen and not the quantity, and further, conviction can be based on the testimony of sole eye-witness, if it is confidence-inspiring, without any further corroboration. In the instant case, the prosecution case, hinges upon the testimony of sole eye-witness i,e, P.W.2 Mst. Durran Bibi, who deposed that on the said night, while she was sleeping in the house, she heard the gun shot reports and woke up and saw the accused-respondent holding a pistol in his hand, who made firing upon the deceased and made his escape good in a red car, parked in the street. The presence of said witness has been established at the place of incident. Though an attempt has been made by the prosecution to show that at the relevant time, she was not present in the said house. Admittedly the deceased was fired at in the house, where she was sleeping alongwith the complainant. Had the complainant not been present in the house, the deceased could have not been shifted to hospital, promptly. It has not been disputed that after firing upon the deceased she was soon shifted to hospital by the complainant. After shifting of deceased to hospital, the police reached there within half an hour, where Fard-e-Biyan of complainant was recorded, promptly.
8. We are not persuaded to agree with the contention of learned counsel for respondent, that the complainant being an interested witness had motive to falsely implicate the accused-respondent in the commission of offence. It may be noted here, that an interested witness is the one, who has motive to falsely implicate any person in the commission of offence. In the instant case, the accused-respondent has denied his marriage with the deceased and it has been brought on record, that she was married with him and the motive of the said offence set up by the prosecution was, that the respondent wanted to get rid of the deceased. Although P.W.2 Mst. Durran Bibi is the mother of deceased, but is the natural witness of the incident and her testimony cannot be discarded merely for the reason, that she was related to the deceased. Even assuming that she was an interested witness, then too,she had no reason to let go the actual murderer of her daughter and implicate the respondent falsely in the commission of offence. She was cross- examined at length but her statement could not been shaken nor the defence succeeded to discredit her testimony. The trial Court has discarded her statement only on the ground, that she deposed that she was sleeping in the courtyard and nobody was in the Verandah, whereas the empties and quilt were taken into possession from the Verandah. For sake of convenience the reasons given by the trial Court for discarding her statement, are reproduced hereinbelow:- "The perusal of the above statement shows that it is not confidence-inspiring because this witness has stated that she alongwith deceased was sleeping in the courtyard of the house and nobody was sleeping in the veranda while according to the prosecution story deceased was sleeping in the veranda of the house when she was fired upon. Police also took into possession empties and blood-stained pieces of bed from the veranda. Similarly she stated that she woke up on the first fire and ran after the accused. While medical certificate Exh.P/A shows that deceased received three bullet injures. If she had woke up on first shot, then she should have seen or at least heard the second and third shots. As such her statement is also belied by the medical certificate. She has also stated that she had given statement to the police after coming house from hospital and according to her she remained with deceased till 10-00 a.m. Which means report Exh.P/B was written after 10-00 a.m. After due deliberation. Her statement is also belied by the statements of other witnesses. For example, she stated that her daughter was not admitted in Ward while according to Exh.P/B deceased was admitted in Neuro Surgical Ward and she died there. P.W.14 Abdul Rauf, Investigating Officer also stated that when he went to hospital, deceased was in Neuro Surgical Ward. It is an admitted fact that the occurrence took place at night but this witness has not stated as to how she identified accused in a dark night. Whether there was any light or not.
9. Although in the site plan it has been shown that there was electric bulb in the house but careful examination of same shows that the word 'Ghar' has been added later on in order to show that there were electric bulbs in the house. No such bulb was taken into possession."
10. A bare perusal of the above shows that the reasons given by the trial Court, are shocking and ridiculous. The complainant being the natural witness of the incident has given very natural account of the incident and she was also cross-examined at length but her statement could not be shaken.
11. We have minutely scrutinized the statement of complainant and are of the considered opinion, that the trial Court has misread the evidence, causing prejudice to the case of appellant. A perusal of the site plan,prepared by P.W.6 Jehangir Khan, Patwari, shows that verandah and the courtyard are attached, and total length of the courtyard is about 22 ft. Therefore, statement of complainant could not be discarded on the ground that when she woke-up she saw the appellant in the courtyard, whereas the deceased was lying in the verandah. On the contrary the Medical Certificate shows that the deceased was fired at from a very close range. Thus, taking into consideration the principles laid down in the case of Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 we are of the view, that the trial has discarded the statement of complainant, on a wrong assumption of law.
12. Mr. Akhtar Zaman, learned counsel was confronted with the situation that as to why, the complainant will implicate the accused-respondent falsely in the commission of offence, he though could not give any satisfactory reply, but attempted to argue that it is a case of mistaken identity and further stated, that it was not possible for the complainant to have properly identified the accused-respondent. From the Medical Certificate, it appears that the deceased was fired at from a very close range and the respondent was already known to the complainant, therefore, there was no question of misidentity or substitution of accused, as it is an established principle of law that substitution by itself is a very rare phenomena. Besides the defence has not questioned the statement of the complainant, as to how she identified the respondent in darkness. A perusal of the site plan shows, that there was a street-light and bulb in the house. The trial Court, however, has discarded, the site plan on the ground that, no bulb was taken into possession by the I.O. It may be pointed out that taking of a bulb into possession, was neither a requirement of law, nor it would negate the prosecution story.
13. For the above reasons, in our opinion, the statement of P.W.2 Mst.Durran Bibi, being a natural witness is confidence-inspiring and the intrinsic worth of her statement has not been shaken by the defence. Thus, the prosecution, has proved its case beyond any shadow of doubt.
14. Now coming to the question; as to what offence has been committed by the accused-respondent.
15. It may be noted that though the respondent has denied his relationship with the deceased, but it has come on record through unimpeachable evidence, that he was married to the deceased and out of the wedlock, a child was also born. Thus, the offence committed by accused-respondent falls within the ambit of section 308, P.P.C., which reads as under:-- "308. Punishment in Qatl-I-Amd not liable to Qisas, etc.--(1) Where an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat; Provided that, wher;.: the offender is minor or insane, Diyat shall be payable either from his property or by such person as may be determined by the Court: Provided further that whether at the time of committing of Qatl-iAmd the offender being a minor, had attained sufficient maturity, or being insane had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir: Provided further that where the Qisas is not enforceable under clause (c) of section 307 the offender shall be liable to Diyat only if there is any Wali other than the offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Ta' zir. .
(2) Notwithstanding anything contained in subsection (1), the Court having regard to facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Ta'zir."
16. In view of the above, as the daughter of deceased is survived by the accused-respondent, therefore, the impugned judgment is set aside and he is convicted under section 308, P.P.C. And sentenced to suffer R.I. For 14 years with benefit of section 382-B, Cr.P.C.
17. Accused-respondent be taken into custody and sent to Central Jail, Mach, to serve out his sentence.