1. ' AMAN ULLAH KHAN, J.--- This appeal is directed against the judgment, dated 4th January, 2000, passed by learned Additional Sessions Judge/Special Judge, S.T.A., Quetta, whereby appellant has been convicted under section 302(a), P.P.C. And sentenced to death, for causing the murder of deceased Lal Jan with fire-arm.
2. ' Prosecution case is that on 22-7-1998 P.W.10 Saadullah Khan Khetran, S.H.O., Industrial Area Police Station, received information that a person has been injured at Jan Muhammad Road, in front of Koocha-e-Sher Muhammad. On receipt of such information, he rushed to Civil Hospital, Quetta, where he recorded Fard-e-Biyan (Exh.P.3/A) of P.W.3 Muhammad Sharafat, alleging therein, that on the said date i.e, 22-7-1998 he alongwith deceased Lal Muhammad came on a motorcycle from Killi Khaliqabad to his house and took a Can of milk and left on the motorcycle towards Gilani Road to deliver the milk. Lal Muhammad was driving the motorcycle, whereas he was sitting on the rear seat. At about 7-45 p.m. When they reached Koochae-Sher Muhammad, suddenly, appellant Muhammad Fayyaz came duly armed with a T.T. Pistol and started firing, due to which, his friend Lal Muhammad received bullet injuries and fell down from the motorcycle. It was further stated, that he also received a bullet injury on his wrist. In the meanwhile his younger brother came and took them to hospital; where Lal Muhammad succumbed to the injuries. On the basis of said Fard- eBiyan, F.I.R. No,107 of 1998 (Exh.P.10/C) was got registered under sections 324/302, P.P.C. And investigation was also initiated by him.
3. ' After recording Fard-e-Biyan, the dead body of the deceased Lal Muhammad was inspected by the S.H.O. And he prepared inquest report (Exh.P.10/D) in the Casualty Ward. After examining the dead body, he wrote two letters (Exhs.P.10/A and B) to the Medical Officer, for conducting post- mortem of the deceased Lal Muhammad and also giving medical aid to the injured Muhammad Sharafat. Thereafter, he proceeded to the place of incident and prepared site plan (Exh.P.10/D).
4. From the place of incident, he secured blood-stained earth vide memo. (Exh.P.6/A) and also recovered two empties of T.T. Pistol vide memo. Exh.P.6/B). He also took into possession the motorcycle vide memo. (Exh.P.6/C) and prepared site inspection report (Exh.P.6/D). On the same night appellant Muhammad Fayyaz, surrendered himself at the police station and during investigation he made disclosure, for affecting the recovery of T.T. Pistol, as such disclosure memo.
5. (Exh.P.10/G) was prepared and thereafter on his pointation a T.T. Pistol alongwith four live cartridges was recovered from a Dairy Farm, situated at Killi Kirani. He also prepared the site plan (Exh.P.10/H) of the place, from where the pistol was recovered. During course of investigation, the S.H.O. Also prepared pointation memo. (Exh.P.5/A), whereby the accused pointed out the place of incident. He also took into possession the blood-kained clothes of deceased vide memo. (Exh.P.10/J). The recovered pistol was sent to for the report of Fire-arm Expert, whereas the bloodstained earth and blood-stained clothes of the deceased were sent to the Chemical Analyser for report. Thereafter, the Investigating Officer obtained report of Chemical Analyser (Exh.P.7/A) and Fire-Arms Expert Report, besides collecting the post-mortem report and medical certificate of deceased and injured. On the completion of investigation, he submitted incomplete challan (Exh.P.10/K) and thereafter complete challan (Exh.P.10/L), was submitted before the learned Special Judge, S.T.A. , Quetta.
6. ' Learned trial Court framed charge on 7-12-1998, which was refuted by the appellant. As such, to substantiate the accusation, prosecution led evidence of: ' P.W.1 Muhammad Fareed. He is an eye-witness of the incident and soon after hearing the gun- shot reports he saw appellant running from Koocha-e-Sher Muhammad and saw the deceased Lal Muhammad lying on the ground after receiving bullet injuries. He further deposed that he took the deceased Lal Muhammad in a Datsun to hospital but on the way he succumbed to the injuries.
7. ' P.W.2 Dr. Zafar, Police Surgeon. He conducted post-mortem of deceased and found following injuries on the person of deceased:--
(1) Entrance wound on the epigastric area (on front of abdomen) slightly to the lateral.
(2) Entrance wound on the right side of chest below the right clavicle.
(3) Exit wound on the back of chest below the left scapula.
(4) Exit wound on the left side of back at lumbar sacral area.
8. Cause of death After external and internal examination of the deceased named Lal Muhammad son of Wali Muhammad I am of the opinion that the deceased was died due to abovementioned injuries which are ante-mortem in nature and homicidal in character and are caused by the fire- arm", ' P.W.3 Muhammad Sharafat, is the complainant. He reiterated the contents of the F.I.R. And stated that on the day of incident, he was going on a motorcycle with deceased Lal Muhammad, which was being driven by the deceased, whereas he was sitting on the back seat. When they reached Koocha-e-Sher Muhammad all of a sudden appellant came in front of them, armed with pistol and started firing. The deceased received bullet injuries and fell down and he also received bullet injury on his wrist. Thereafter, his brother came and took him to hospital in a rikshaw, where he was informed that Lal Muhammad has succumbed to the injuries and his Fard-e-Biyan was recorded by the S.H.O.
9. ' P.W.4 Nisdar Ahmad. He deposed that on 22-7-1998, he heard gun shot reports and came out of his shop and saw Fayyaz Muhammad running towards his house and the deceased was lying in an injured condition in front of his shop. He also saw the complainant in an injured condition. In the meanwhile Muhammad Fareed and other took Lal Muhammad to hospital, where he succumbed to the injuries.
10. ' P.W.5 Muhammad Naseem Lehri. He deposed that on 23-7-1998, appellant Muhammad Fayyaz in his presence pointed out the place of incident, whereas the deceased was shot by him. He is marginal witness to the pointation memo.
11. ' P.W.6 Fayyaz Ahmad, A.S.-I. He is marginal witness to the recovery of blood-stained earth and two empties secured from the place of incident. The S.H.O. Also took the blood-stained clothes in his presence and prepared the parcel and the motorcycle which belonged to the complainant was also taken into possession in his presence.
12. ' P.W.7 Syed Abdul Jabbar, Chemical Analyser. He carried out chemical analysis of blood-stained earth and blood-stained clothes and opined that both the articles were stained with human blood.
13. ' P.W.8 Muhammad Siddique. He is also an eye-witness. He deposed that on 22-7-1998, Lal Muhammad and Muhammad Sharafat were going on a motorcycle and when both of them reached Jan Muhammad Road, appellant came out and fired at them. Lal Muhammad received injuries and fell down and Muhammad Sharafat also sustained injuries. Appellant thereafter made his escape good towards Koocha-e-Sher Muhammad.
14. ' P.W.9 Azim. Fire-arm Expert. He carried out the tests of empties and gave his report in respect of the same. He opined that the empties were fired from .30 bore T.T. Pistol.
15. ' P.W.10 Sanaullah Khetran, Investigating Officer. He.Completed the investigation and submitted challan.
16. ' The appellant was examined under section 342, Cr.P.C. Wherein he denied the prosecution case and also got recorded his statement on oath as envisaged under section 340(2), Cr.P.C. In defence he got examined:-- ' D.W.1 Amanullah. He deposed that on the day of incident at about 9-00 p.m. He received telephonic call from Jan Muhammad Road, while he was in the Dairy Farm at Killi Kirani. He was asked to inform Fayyaz Muhammad and Riaz, that their father and uncle have been taken to police station. Thereafter, he informed appellant Fayyaz Muhammad, who left the Dairy Farm.
17. ' D.W.2 Abdul Rehman. He deposed that on the day of incident at about 9-15 p.m. He was present in the Kirani Dairy Farm, where Amanullah came and informed that father and uncle of appellant have been taken to police station and on the next day he came to know that Fayyaz has been arrested in the case. He further deposed that on the said night appellant was present in the Dairy Farm.
18. ' D.W.3 Shaukat Ali. He deposed that the deceased did not have good reputation. He was drunkard and was known for his notorious activities.
19. ' D.W.4 Muhammad Riaz. He is the elder brother of appellant. He deposed that on the day of incident appellant Fayyaz was present in the Dairy Farm, at Kirani Road. He came in the morning at about 10-00/11-00 a.m. And remained there till night, when he was informed by Amanullah that his father and maternal-uncle have been arrested by the police. Thereafter, appellant left and later on he came to know that appellant has been arrested for causing murder of deceased Lal Muhammad. He further deposed that police during search of house, took away his licensed pistol.
20. ' D.W.5 Muhammad Nawaz, also deposed about the character of deceased Lal Muhammad that he was known as "Thakur" and was a notorious person.
21. ' On the completion of trial, learned Court vide impugned judgment convicted the appellant under section 302(a), P.P.C. And sentenced him to death.
22. ' Mr. Muhammad Aslam Chishti, learned counsel has assailed the judgment on the following grounds:--
(1) Presence of P.W.3 Muhammad Sharafat is highly doubtful at the place of incident.
(2) All the eye-witnesses are chance witnesses and they have not proved their presence at the place of occurrence.
(3) There are material contradictions in the statements of prosecution witnesses.
(4) The recovery of pistol is highly doubtful and same is also in violation of the provisions of section 103, Cr.P.C.
(5) The crime-empties and the pistol was sent to the Fire-arm Expert after a considerable long delay, therefore, no reliance can be placed on the report of Ballistic Expert.
(6) Motive has not been established by the prosecution.
(7) The alleged offence does not fall within the schedule of Suppression of Terrorist Activities (Special Courts) Act, 1975, therefore, the trial Court had no jurisdiction to try the case and further reference as requited under section 374, Cr.P.C. For confirmation or otherwise of the death sentence has not been sent to this Court.
23. ' Mrs. Ashraf Abbas, learned State Counsel, while opposing the appeal contended; that the presence of complainant (P.W.3 Muhammad Sharafat) and other eye-witnesses was very much established and their statements are confidence inspiring, as despite lengthy cross-examination, their testimony could not be shaken. She further contended that the crime weapon was recovered soon after the arrest of appellant at his pointation, and simply non-association of the private witnesses would not make the recovery defective. The case was rightly tried by the S.T.A. Court as at the relevant time T.T. Pistol was included in the schedule of the Act of 1975. Even otherwise no prejudice has been caused to the appellant, if the case has been tried by the S.T.A. Court. No reference was required as the case was tried by the S.T.A. Court and the said question has also been referred to the Larger Bench.
24. ' Chaudhry Rafique Ahmad, learned counsel for the complainant contended that the eye-witness had no animosity to falsely implicate the appellant, and despite lengthy cross-examination the intrinsic worth of the testimony of witnesses could not be shaken.
25. ' We have heard the learned counsel for parties at length and also perused the record of case minutely.
26. ' Adverting to the argument of learned counsel for appellant, that the presence of P.W.3 Muhammad Sharafat and the other witnesses is highly doubtful. In support of his argument, learned counsel- contended that complainant Muhammad Sharafat deposed that he also received a bulk injury on his wrist, but no medical certificate was produced and further he was sitting on the back seat of motorcycle, but the bullets which hit the deceased, passed through and through, astonishingly have not hit the complainant, which leads to the only logical conclusion that the complainant was not present at the time of incident. To further substantiate his argument learned counsel stated that the witness had no reasons to be present at the place of incident and further the statement of complainant contradictory to the F.I.R. As in the F.I.R. He stated that alongwith deceased were shifted to hospital by his younger brother, but in his Court statement, he deposed that he was only brought to hospital by his brother.
27. ' We have examined the statement of P.W.3 Muhammad Sharafat with due care and we are unable to agree with the learned counsel that his presence at the place of incident is doubtful. The witness has given detailed account of the incident. In his deposition he stated that he alongwith Lal Muhammad was coming from Khaliqabad to Koocha-e-Sher Muhammad and at the crossing of Jan Muhammad Road and Koocha-e-Sher Muhammad, the appellant fired at the deceased. This portion of the evidence was further corroborated by the other witness, which will be discussed later on. Further it may be observed that the complainant P.W.3 Muhammad Sharafat is neither related to the deceased nor has any enmity with the appellant to falsely implicate him in the commission of offence. This witness was cross-examined at length but his testimony could not be shaken.
28. It has also come on record, that the deceased was fired at from a very short range, thus, possibility of misidentity of the appellant is also ruled out. Further it may be noted that there is nothing on record to suggest, that the appellant was substituted for the real culprits, as substitution in itself is very rare phenomena.
29. ' As far as the contention of learned counsel that it is improbable that the bullet did not hit the complainant Muhammad Sharafat, as he was sitting on the back seat, it may be observed, that if the bullets which passed through and through did not hit the complainant, it would not lead to the conclusion, that his presence is doubtful. It may be noted that it cannot be said with certainty that the bullets after entering the body of deceased, would travel in which way. Though it has come on record that complainant has received an injury on his wrist, which has been confirmed by the oral evidence, therefore, the possibility cannot be ruled out that one of the bullets passing through the body of deceased might have hit the complainant at his wrist. But the statement of complainant cannot be discarded on the sole ground that since the bullet has passed through and through, therefore, same should have hit him. On the contrary the presence of complainant at the time of incident, through other convincing evidence and circumstances, stands established. The complainant has satisfactorily explained, that due to heavy traffic, the motorcycle was stopped.
30. There was traffic on both sides of Jan Muhammad Road. The material portion of his statement has been fully corroborated. His statement cannot be discarded on the sole ground, that there is a minor contradiction in the F.I.R. And his statement in Court, regarding shifting of deceased to the hospital, or his presence be doubted at the place of incident, that he did not receive any injury or failed to produce any medical certificate.
31. ' Referring to the next limb of the argument, regarding presence of other witnesses, learned counsel in this behalf contended, that the other eyewitnesses namely P.W.1 Muhammad Fareed, P.W.4 Nisar Ahmad, and P.W.8 Muhammad Siddique are chance witnesses and their presence at the place of incident is doubtful.
32. It may be observed that in the manner, in which, the incident took place and described in the F.I.R., presence of all the three witnesses was confirmed and no material contradiction has been pointed out. It has come on record, that the firing was made from a distance of about 2/3 yards by the appellant and at the relevant time, there was traffic on both sides of the road and the shops were open. Thus, there was no possibility of misidentity of the appellant. Further, all the eye-witnesses including the complainant have corroborated each other on the point that due to heavy traffic the motorcycle stopped in front of Koocha-e-Sher Muhammad, where the appellant suddenly came out with a T.T. Pistol and fired two shots at the deceased, due to which, he fell down. This portion of the statement has been fully corroborated by all the witnesses and despite lengthy cross- examination, their testimony could not be shaken.
33. ' Besides, the eye-witnesses, who were present at the place of incident, have also explained their presence at the place of incident, satisfactorily. It may be observed, that there is nothing unusual of persons sitting on a Thara in the evening of summer days, in between 7-00 to 8-00 p.m. As normally people come out of their houses and sit on a Thara or in a restaurant or in a shop, to pass time. Thus, the contention of learned counsel is repelled, that it is very unusual and improbable, about presence of eyewitnesses, at the place of incident and especially when nothing has been brought on record to show, that the witness have any enmity with the appellant to falsely implicate him. It may be noted that the statements of witnesses have been further corroborated by the medical evidence, which shows that both the bullet injuries were received by the deceased on front portion of his body. All the witnesses were cross-examined at length wherein neither any enmity has been alleged against them to falsely implicate the appellant nor the defence has been able to shake the intrinsic value of the testimony of witnesses.
34. ' Learned counsel during course of arguments pointed out certain contradictions in the statement of witnesses, such as that the complainant stated in the F.I.R. That he and deceased were brought to hospital by his younger brother and in the Court statement, he deposed that he alone was brought to hospital.
35. 'It may be observed that all such submission made by learned counsel on similar points do not go to the roots of case, in view of the direct evidence of disinterested witnesses having no motive to falsely implicate the appellant. In this behalf, reliance is placed on 1999 SCM R 329, wherein the Honourable Supreme Court has made following observations:-- ' "It was urged before us that they are interested witnesses and being close relatives of the deceased, their testimony cannot be believed. No doubt, they are related, but mere relationship is no basis to discard their evidence. Furthermore, by no stretch of imagination they can be considered to be interested witnesses. An interested witness, as laid down by this Court on a number of occasions and particularly in the case of Niaz v. The State (PLD 1960 SC 38), is a person, who has a motive to falsely implicate a person. Considering the testimony of these two eye- witnesses on the touchstone of the aforesaid criteria, we do not find that their testimony is tainted or they had any motive to falsely implicate the appellant nor any enmity worth the name has been brought on record to show that they are implicating the appellant in this case falsely. Furthermore, the appellant was a shop attendant/Chowkidar working in the college of which the Principal was the real sister of the 'deceased, and thus, there can hardly be any enmity between the appellant and the eyewitnesses. On the other hand, we are of the view that out of compassion, the appellant had been accommodated by the Principal and the deceased both real sisters in the servant quarter of their house so as to solve problem of his accommodation. No doubt he used to do some work in the house of the deceased, but the appellant being ungrateful committed the murder of his own benefactor. As far as motive in this case is concerned, there was hardly any reason for the first informant to fabricate the motive of the case as disclosed to him by the appellant after he was captured. Such statement of the appellant is a relevant fact because it was made soon after the commission of crime and his capture. We are not prepared to believe that a prompt F.I.R., the narration of the motive as disclosed by the appellant would have been fabricated and could be a brainchild of the first informant."
36. ' Coming to the next contention of learned counsel that the recovery of the pistol cannot be believed as it has been affected in sheer violation of the provisions of section 103, Cr.P.C. In this behalf learned counsel contended, that no efforts were made for associating the private witnesses at the time of recovery.
37. It may be noted that the provisions of section 103, Cr.P.C. Are mandatory in nature and police at the time of effecting recovery, is under legal obligation to associate private persons from the public to witness the recovery. In the case in hand, it has come on record that no private person has been associated by the Investigating Officer while effecting the recovery of pistol. It may be observed that in the cases, where no private persons are available nor anybody volunteers to witness the recovery, then in that case, the police officials are as good as private witnesses. In the case in hand the Investigating officer deposed, that the recovery was effected from the Dairy Farm situated in Killi Kirani, but it has come on record that he called the Duty Officer of the concerned police station i.e, Police Station Brewery, to witness the recovery. Though no motive has been alleged against the Investigating Officer to falsely implicate the appellant, but the provisions of section 103, Cr.P.C.
38. Require association of persons from the public to witness the recovery and it has been held by the Honourable Supreme Court in many cases, that if no reasons are assigned by the Investigating Officer for not associating the private witnesses at the time of recovery then no weight can be given to such recovery.
39. Before dilating upon the recovery of pistol, it may be observed that since we have believed the ocular testimony of eye-witnesses, that the deceased was actually done to death by the appellant, therefore, it would be immaterial if the recovery at the pointation of appellant is believed or disbelieved. Thus, in our view, in the given facts and circumstances of instant case, in any case, whether the prosecution has proved the recovery or otherwise? It would not be fatal to the prosecution case. However, from the defence version, it has come on record that the pistol belonged to the brother of appellant and was licensed one and further from the defence evidence it has come on record that the appellant used to visit the house of his brother, where he has a Dairy Farm also, therefore, the possibility cannot be ruled out that he had an easy access to the pistol.
40. It may be observed, that the empties secured from the place of incident have been matched with the pistol, recovered on the pointation of appellant Mr. Muhammad Aslam Chishti, learned counsel pointed out, that the empties and pistol were sent to the Fire-arm Expert at a very belated stage which casts doubt on the authenticity of the report. It has been held by the Superior Courts, that sending of recovered articles to the Experts, with delay can only be termed fatal to the prosecution, in case the defence has been able to establish malice on the part of police or that the empties have been substituted to match the crime weapons. In the case in hand it has been averred, that the investigation was not conducted in a proper manner as the Investigating Officer has failed to associate two respectable persons from the vicinity at the time of recovery of pistol and further sent the articles with delay for Expert's Report. It may be observed, that said acts on the part of the Investigating Officer could be termed as an irregularity committed during the course of investigation but it is a settled and well-entrenched principle of law, that the procedural defects and irregularities and sometime even the illegalities committed during the course of investigation, shall not demolish 1 the prosecution case nor vitiate the trial. It may further be observed that no malice has been attributed to the Investigating Officer for sending the articles with delay nor the defence has alleged substitution of crime weapons and empties. Thus, the said contention of learned counsel is of no benefit to the defence.
41. Reverting to the contention of learned counsel that no motive has been set up by the prosecution, it may be observed that absence of motive would not affect the prosecution case nor would cast any shadow on the prosecution case. It is well-settled that once a motive is set up then the prosecution is bound to prove the same. In the case in hand, though while cross-examining the appellant, it was put to him, that prior to the incident a dispute took place between the appellant and deceased on the parking of motorcycle at Koocha-e-Sher Muhammad and altercation also took place between him and deceased, which of course was denied by appellant. But it is worth- mentioning that no evidence was led by prosecution to show, that an altercation actually took place between the appellant and deceased. Besides, it seems very improbable that the appellant would take such an extreme step of killing the deceased, only on a petty incident which according to the complainant, took place prior to incident.
42. ' It has come on record that appellant and the deceased are living in the same lane and are neighbourers also and no previous enmity has been alleged by the prosecution. However, the defence has brought on record that the deceased was a vagabond and known as Thakur in the area. Thus, in our considered opinion both prosecution and defence have suppressed the actual facts, leading to the unfortunate incident. Possibility cannot be ruled out, that something must have had happened between the parties, which led to the said incident, but has not been brought to surface, even otherwise, it does not appeal to a prudent mind, that without any strong motive the appellant would take such an extreme step of killing the deceased, when there is no enmity and both the parties Were neighbour living in the same lane. Something must have happened between the parties, compelling the appellant to do away with the deceased. Thus, in our considered opinion sentence of death is not compatible with the circumstances of the case, therefore, in our opinion, sentence of imprisonment for life will commensurate with the gravity of offence committed by the appellant.
43. Coming to the question, that T.T. Pistol does not fall within the Schedule of S.T.A. Act, therefore, the S.T.A. Court has no jurisdiction to try the case. In this behalf it may be observed that the case was tried by the learned Additional Sessions Judge in capacity of S.T.A. Court and it is worth mentioning that even otherwise the learned Additional Sessions Judge, i.e, the trial Court has jurisdiction to the case as an ordinary Court. Further, no objection was raised at the time of trial regarding jurisdiction of the Court. Besides even no prejudice has been caused to the appellant and the trial could not be vitiated for the simple reasons, that the S.T.A. Court had no jurisdiction to try the case. It may be observed that even if the argument of learned counsel is accepted, then too, the same would not be beneficial to appellant as at the best case can be remanded to learned Sessions Judge, only for the purpose of re-writing of judgment, whereas the fact remains, that the Presiding Officer of the Sessions Court and the S.T.A. Court is the same.
44. ' Lastly the contention of learned counsel stated that reference should have been made by the S.T.A. Court regarding confirmation or otherwise of the death sentence awarded to appellant. It may be observed that this question has been referred to the larger Bench and we abstain to dilate upon the same and further this question has also been resolved in the case of Abdul Qadir and another v. The State 1998 PCr.LJ 426.
45. As a result of above discussion, sentence of death awarded to appellant by trial Court vide judgment, dated 4-1-2000 under section 302(a), P.P.C. Is altered to that of section 302(b) and appellant is awarded life imprisonment, with benefit of section 382-B, Cr.P.C.
46. ' With the above alteration in section and modification in sentence, the appeal is dismissed.
47. Sentence reduced.