' IJAZ-UL-HASSAN, J.--- Appellant Alimdad alias Khan son of Khaiwadad, resident of Gar Maneri, District Swab, was tried by learned Sessions Judge with powers of Special Court, Swabi on the allegations of having, on 2-1-1998 at 20-00 hours near the house of Hassan Dad in Gar Maneri, Swabi alongwith his absconding co-accused Nawar Khan, Mewa Dad and Afsar Khan and in furtherance of their common intention, committed Qatl-i-Amd of Fariq Dad (35) son of Alif Dad and attempted effectively on the life of Munsif Dad by firing . At the conclusion of trial, vide judgment, dated 11-12-1999 the appellant, having been found guilty, was convicted under section 302(b)/34, P.P.C. And sentenced to death penalty as Ta'zir. He was also convicted under section 324, P.P.C. To suffer five years' R.I. With fine of Rs,20,000 or in default of payment thereof the undergo R.I. For two years and under section 337-F(iii), P.P.C. To two years' R.I. With a fine of Rs,10,000 or in default of payment thereof to suffer six months and under section 337, P.P.C. Arsh equal to 1/3rd of Diyat i,e, 22, 133, 33-and section 337-T/34, P.P.C. To Arsh equal to one-tenth of Diyat for each figure i,e, Rs,13,300. The appellant was also ordered to pay compensation amount of Rs,50,000 to P.W.
Munsif Dad under section 544-A, Cr.P.C.
2. The appellant has filed Criminal Appeal No,3.65 of 1999 to challenge his conviction and sentence.
The learned Sessions Judge has made a Murder Reference No,3 of 2000 to this Court under section 374, Cr.P.C. The criminal appeal alongwith murder reference are disposed of through this judgment.
3. The crime in question having taken place on the day, time and the venue of occurrence mentioned above, the report (Exh.P.A./1) about it was lodged the same night at 20-20 hours by complainant Fariq Dad in Civil Hospital, Swabi and it was recorded by A.S.-I. Liaqat Khan (P. W.10)
Incharge Casualty. It was mentioned in the report that accused Mewa Dad and others owed some money to the complainant party. On the night of incident, the complainant accompanied by his brother Munsif Dad went to the Dhaira of Mew Dad and asked for return of money. During the demand an altercation took place between the two parties but the matter was amicably settled due to timely intervention of the elders of the locality. After settlement the complainant and his brother Munsif Dad were on their way back to home end when they reached near the house of Hussan Dad, they were waylaid by the accused. The accused resorted to firing with their respective kalashnikovs in consequence of which the complainant and Munsif Dad sustained injuries. Imran son of Zar Dad and Hassan Dad son of Alam Dad, co-villagers of the complainant, witnessed the occurrence.
4. A.S.-I. Liaqat Khan (P.W.10) recorded the report in the shape of Murasila (Exh.P.A./1) and sent the same to the Police Station Swabi where it was incorporated in F.I.R. By S.-I. Amirullah Khan (P.W.3).
A.S.-I. Liaqat Khan then prepared injury sheets Exh.P.W.10/1 and Exh.P.W.10/2 respectively of Fariq Dad and Munsif Dad injured, S.-I. Pardool Khan (P.W.8) who happened to be on Gasht on receipt of copy of the F.I.R. Proceeded to the spot, recovered blood-stained earth from the place of injured Fariq Dad and sealed the same into parcel vide recovery memo. Exh.P.C. In presence of marginal witnesses. He also recovered from the spot 26 empties of 7.62 bore giving the smell of fresh discharge and sealed the same into parcel vide recovery memo. Exh.P.C./1 in presence of marginal witnesses. He also recovered a bulb of 100 watt from the house of Hussan Dad and sealed the same into parcel vide recovery memo. Exh.P.C./2. He then prepared site plan (Exh.P.B.) on the pointation of eye-witnesses. The accused-appellant was arrested from the house of one Asghar Khan son of Azeem Khan resident of village Naro Banda, Swabi on 2-1-1998 at 21-30 hours during a raid conducted under the supervision of Ajab Gul Khan, D.S.P., Swabi. The appellant was found duly armed with kalashnikov No,66-56-IH-16038293 alongwith charger containing 20 live rounds of 7.62 bore without permit or licence, which were taken into pbssession and sealed into parcel vide recovery memo. Exh.P.W.2/1. A case under section 13, A.O./4, S.T.A. Was registered against the accused-appellant vide F.I.R. No,21, dated 2-1-1998. The empties recovered from the spot alongwith kalashnikov recovered from the possession of the accused were sent to Fire-arm Expert, Peshawar for opinion and report. According to the report (Exh.P.Z.), 5 empties of 7.62 mm bore marked C-9, C- 12, C-16, C-18 and C-23 were found to have been fired from the 7.62 mm bore kalashnikov No,66- 56-IH-16038293 in question.
6. Dr. Hameedullah Shah, Medical Officer, Civil Hospital, Swabi (P.W.13) examined Munsif Dad on 2-1- 1998 at 8-06 p.m. And found the following:--
(1) Exit wound on lower abdomen (right side).
(2) Entry wound on left side of upper chest.
(3) Entry wound on back of left arm about 6 c.m. Above elbow.
(4) Exit wound on back of left arm near shoulder joint.
(5) Entry wound on right buttock.
(6) Entrance wound left chest.
(7) First and second finger of right hand are cut.
' Nature of injury grievous. Weapon of offence fire-arm. Probable duration of injury within one Mut.
7. Dr. Hameedullah Shah P.W. Also examined complainant Fariq Dad on 2-1-1998 and keeping in view the precarious condition of the injured referred him to Lady Reading Hospital, PeshaWar. The injured expired in the hospital on 4-1-1998. Dr. Sahib Shah, Medical Officer, Khyber Medical College, Peshawar (P.W.12) performed post-mortem examination of the deceased on 4-1-1998 at 4-00 p.m.
And noted the Following on external examination:--
(1) Fire-arm entry wound 0.5 x 0.7 c.m. On right side of abdomen 10 c.m. From back mid line and 5 c.m. Above iliac crest.
(2) Fire-arm entry wound on back chest right side 0.5 x 0.5 c.m. In size and 3.5 c.m. Above injury No, 1.
(3) Fire-arm exit wound on front chest right side 8 x 6 c.m. In size 5 c.m. From mid line and 17 c.m.
Below the clavical.
(4) Surgical wound on right front chest 13 c.m. Below anterior axillary fold and 1 x 1 c.m. In size.
(5) Laptromy (surgical wound) in front of abdomen 30 c.m. In size stitches.
' Thorax: Walls, ribs and cartrilages, pleurae, right lung, and blood vessels were found injured.
' Abdomen: Walls peritoneum, stomach, a small intestines, large intestines, liver and right kidney was removed in hospital.
8. In his statement recorded under section 342, Cr.P.C. The appellant denied the prosecution allegations and claimed to have been charged falsely. According to the appellant no recovery of kalashnikov was effected from him and he was arrested from his house. The appellant also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. He led no evidence in defence.
9. The prosecution in order to prove its case produced as many as 13 witnesses and abandoned P.Ws. Irfan Dad, Zar Nawab, Bacha Said, A.S.-I., Fazal Sher, F.C. And Ijaz F.C. As unnecessary.
10. After taking into consideration the evidence led by the prosecution the learned trial Judge held that the prosecution has succeeded in bringing home the charge against the accused resultantly the accused was convicted and sentenced as mentioned above.
11. We have heard Barrister Zahurul Haq for the appellant and Mr. Muhammad Tariq Javed, Deputy Advocate-General for the State assisted by Barrister Masood Kausar for the complainant at some length in the light of the material on file.
12. The learned counsel for the appellant bitterly criticized the impugned judgment and reiterated that the claim of P.Ws. Munsif Dad and Hussan Dad to have witnessed the crime stands belied by a host of circumstances. In this context it was submitted that evidence on capital charge had not been collected from the unimpeachable source and the eye-witnesses account furnished in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it. The learned counsel also contended that the report of the Fire-arm Expert would not be of much evidentiary value for the reason that the kalashnikov attributed to the appellant and the empties had remained in the custody of the police for sufficient long time. No reliance can be placed on the said report as the possibility of the substitution of the empties cannot be ruled out.
The learned counsel also invited our attention to the medical evidence supplied by doctor Hameedullah Shah and Sahib Shah P.Ws. And submitted that the same is not in line with the evidence furnished by P.Ws. Hussan Dad and Munsif Dad who claim to have seen the incident.
Additionally it was urged that the only impartial and disinterested witness namely Imran stated to have seen, the occurrence, has been withheld by the prosecution without valid reasons which tends to suggest that had he been produced at the trial he would not have supported the prosecution story. The learned counsel also challenged the prosecution case about the identification of the accused and submitted that the appellant has been charged on mere suspicion. He placed reliance on Saee and others v. The State 1984 SCMR 1069, Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211. Muhammad Younus Khan v. The State 1992 SCMR 545, Rab Rakhio and 2 others v. The State 1992 SCMR 793, Allah Dad and another v. The State 1995 SCMR 142, Sardar Khan and 3 others v. The State 1998 SCMR 1823, Nisar Hussain v. The State PLD 1964 (W.P.) Pesh. 59, Muhammad Shafi and another v. The State PLD 1968 Lah. 869, Muhammad Ashraf v.
The State 1975 PCr.LJ 787, Mushtaq Ahmad and others v. The State PLD 1978 Lah. 507, Muhammad Fiaz v. The State PLD 1993 Pesh. 138 and Muhammad Rafique v. The State 2000 MLD 1766.
13. Conversely, learned counsel for the State supported the impugned judgment and contended that the appellant is nominated as one of the accused persons in the promptly lodged report for the commission of crime and in the absence of any motive to falsely implicate him there is no reason to discard or disbelieve the prosecution version.
14. It needs no reiteration that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in the favour of the accused and it is imperative for the Court to examine and consider all the relevant proceeding and leading facts to the occurrence, so as to arrive at a correct conclusion. It is not denied that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grade and concession but as of right.
14-A. It is important to reiterate known principle of reappraisal of evidence in criminal cases namely that if a witness is trustworthy and reliable then conviction can safely be based on his evidence but if he is unreliable witness then it cannot be utilized for the purpose of passing conviction against the accused. However, if the witness has given partially reliable and partially unreliable evidence then applying the device of sifting the grain from chaff and seeking independent corroboration from other reliable evidence on material particulars conviction can be based on it. Thus, it would be seen as to whether ocular testimony furnished by the witness falls under which category enabling the Court to decide the matter without departing from the principles of justice.
' As stated above, two witnesses namely Munsif Dad and Hussan Dad claim to have seen the incident. Munsif Dad has also sustained injuries on his person during the occurrence. Both these witnesses have corroborated each other on each material point without any significant contradiction. They were subjected to lengthy cross-examination but nothing could be elicited to shatter their testimony. There are no doubt some minor discrepancies in their evidence but this is not sufficient to label them as completely untruthful witnesses since the evidence has received corroboration from the medical evidence, motive and recoveries from the spot. Nothing has been pointed out to discard the testimony of these witnesses. Mere fact that P.Ws. Are interested in prosecution is not, by itself, enough to discard their evidence altogether. It is true that P.W. Munsif Dad is real brother of Fariq Dad deceased and P.W. Hussan Dad is also related to the complainant party but it is equally true that in criminal administration of justice evidence furnished by independent witness related to victim cannot be discarded merely for the reason that the witness has relationship with the deceased. In this case it is true that P.W. Hussan Dad is related to the deceased but it is equally true that he is related to the accused party as well. He participated in Jirga and the crime in question is alleged to have taken place in front of his house. His presence at the spot cannot be doubted. He had no reason to falsely implicate the accused and allow the real culprit go unpunished. We are satisfied that Munsif Dad and Hussan Dad P.Ws. Were present at the spot and had seen the appellant and his companions firing at the complainant party.
15. The appellant was arrested on 2-1-1998 at 21-30 hours from the house of Asgbar Khan son of Azim Khan in village Naro Banda and a kalashnikov alongwith a charger containing 20 live rounds of 7.62 bore was recovered from his possession. The kalashnikov and 26 empties recovered from the spot were sent to Fire-arm Expert, Peshawar for his opinion and report. Per report Exh.P.Z. Five empties of 7.62 mm bore marked C-9, C-12, C-16,,C-18 and C-23 were found to have been fired from 7.62 mm bore kalashnikov in question. The sealed parcel was received in the Forensic Science Laboratory Crime Branch, N.-W.F.P. Peshawar on 11-2-1998. The validity of the report has been challenged principally on the ground that the kalashnikov and the empties had remained in the custody of the police for sufficiently long time, hence no reliance can be placed on the said report as the possibility of the substitution of the empties cannot be ruled out. The submission has not impressed us. It has been held by the superior Courts that sending of recovered articles to the Expert with delay can only be termed fatal to the prosecution case 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 weapon. If the dispatch is found to have been delayed, 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 the irregularities and sometimes even the illegalities committed during the course of investigation shall not demolish the prosecution case nor vitiates 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 the learned counsel is of no benefit to the defence. Sikandar and 2 others v. The State PLD 1981 SC 477, Wazir v. The State PLD 1960 Kar. 676, Noor Alam v. The State PLD 1978 SC 137 and Rab Rakhio and 2 others v. The State 1992 SCMR 793.
16. Learned counsel for the appellant next raised the question of identification and submitted that at the relevant time complete darkness had prevailed and there was no sufficient light to identify the accused. The submission of the learned counsel has not impressed us for the reason that the parties were already known to each other and a bulb Of 100 watt was recovered from the house of P.W. Hussan Dad which was shedding light at the relevant time. Learned counsel for the appellant submitted that the bulb finds no mention in F.I.R. And it was subsequently introduced. This submission is also not tenable. The primary object of F.I.R. Under section 154, Cr.P.C. Is to convey information about the commission of a cognizable offence, which a Police Officer is competent to investigate as contemplated under section 156, Cr.P.C. In other words, the F.I.R. Is meant to set in motion the Investigation Agency the minute details about incident are not, necessarily to be given in the F.I.R. And F.I.R. Cannot be ruled out of consideration merely on account of the omission of a minor fact.
17. Learned counsel for the appellant also submitted that ocular account of the incident furnished by Munsif Dad and Hussan Dad is not in line with the medical evidence on record. This submission is also without substance. No discrepancy has been pointed out between the ocular testimony and the medical evidence.
18. One of the eye-witnesses namely Imran son of Zardad has been abandoned by the prosecution.
It is submitted by the learned counsel for the appellant that this witness has been withheld by the prosecution without valid reasons. The submission has not impressed us. It is a quality of evidence and not quantity of evidence which persuades a Court of law to convict or acquit an accused person.
19. Regarding motive, the learned counsel contended that prosecution has miserably failed to prove as to what was the motive leading to the tragedy. We regret the submission is not forceful.
The IL motive stands proved from the material on record.
20. Having heard the arguments and submission of learned counsel for the parties we find ourselves in agreement with the learned State Counsel assisted by the learned counsel for the complainant that the eye-witnesses in the present case despite being related to the deceased had no grudge or enmity against the appellant. The defence despite lengthy cross-examination, has not been able to bring on record any material to show that either the injury on the person of Munsif Dad was self-inflicted or his presence at the time of occurrence at the spot was doubtful.
The fateful occurrence took place near the house of P.W. Hussan Dad. He was the most natural and independent witness of the occurrence and notwithstanding of his relationship with the deceased, he had no grudge or malice against the appellant to implicate him in a false case or depose against him or substitute him with the real culprit. The kalashnikov recovered from the appellant was found to have been used in the crime. Five empties recovered from the place of the appellant were found to have been fired from the said kalashnikov. The medical evidence further confirmed the prosecution version. The detailed scrutiny of the evidence would show that the plea of innocence -taken by the appellant is not supported by any direct or circumstantial evidence available on record. The witnesses despite being related to the deceased are entirely independent, natural and truthful. They corroborate each other on all material points. The minor discrepancies and contradictions as pointed out by the learned counsel during the course of arguments would not affect their testimony. We, therefore, while confirming the findings of guilt of the appellant given by the learned trial Court held that he has been rightly convicted under section 302(b), P.P.C. For committing Qatli-Amd of deceased Fariq Dad. However, taking into consideration the motive part of the prosecution story, we find that there is nothing on the file to show that after having reached an amicable settlement in the Jirga, what prompted the appellant to waylay the deceased and his brother and resort to firing culminating in the death of Fariq Dad and injuries to P.W. Munsif Dad.
Further, in addition to the appellant three other persons are also charged in the report and it is not ascertainable as to whose fire shot proved fatal. In the circumstances, we are not inclined to confirm the sentence of death awarded to the appellant and are of the view that the sentence of imprisonment for life shall sufficient meet the ends of justice. We, accordingly, while maintaining the conviction of the appellant under section 302(b), P.P.C. Reduce his sentence from death to the imprisonment for life. The other sentences shall remain intact. Benefit of section 382-B, Cr.P.C. Shall also be given to the appellant.
21. With the above modification in the sentence we dismiss the appeal and answer the murder reference in the negative. The death sentence is not confirmed.