' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal is filed by leave of the Court against judgment, dated 12th February, 1995 passed by Peshawar High Court, Peshawar in pursuance whereof Appeal No,21 of 1992 filed by the appellant has been dismissed and sentence of death awarded to him by Sessions Judge, Swabi vide judgment, dated 1st February, 1992 was confirmed.
2. The prosecution case as it has been unfolded during trial is that on fateful day i.e, 23rd July, 1988 appellant and co-convict Mandoos Khan summoned complainant Taj Wali, Liyas Khan, Said Rehman, Shafi Rehman, Bashir Ahmed, Samiul Haq and Faqir Sher to Hujra Basukhail through Muhammad Tayyab for effecting compromise with them of an altercation took place few days back with them. As such after Isha Prayer complainant and others went to Hujra Basukhail where Mandoos Khan and P.W. Said Qayyum were already present with appellant Amrood Khan. Both the accused i.e, Amrood Khan and Mandoos Khan were armed with kalashnikovs. As soon as complainant alongwith five other persons sat down on cots, convicts Amrood Khan and Mandoos Khan started firing upon them, which resulted in the death of Liyas Khan, Shafi-ur-Rehman, Bashir Ahmed, Sami-ul-Haq and Said Rehman whereas P.W, Said Qayyum (not produced) sustained injuries. However. P.W. Faqir Sher escaped unhurt. The dead bodies were firstly shifted to hospital by complainant Taj Wali where he lodged report on 23rd July, 1988 at 1-30 a.m. Vide F.I.R. Exh.P.A., recorded by P.W. Muhammad Anwar, S.H.O. It is pertinent to point out here that prior to lodging of F.I.R. No,373, appellant/convict got registered F.I.R. No,372 of 1988 under sections 302/307/34 P.P.C. At the same police station. It may also be noted that at the time of his arrest on the same day, appellant was himself found injured. Accordingly after registration of the case injury sheets and inquest reports of deceased were prepared and their dead bodies were sent to hospital for examination. Similarly injured Said Qayyum and appellant Amrood Khan were also sent to hospital for treatment. P.W.- Muhammad Anwar, Investigating Officer visited the place of incident and started investigation of the case during course whereof, he prepared site plan Exh.P.B. And also took into possession 43 empties and, spent bullets from the spot and sealed them into a parcel vide Exh.P.C. And later on these empties were sent to Forensic Science Laboratory for report. He also took bulbs each of 100 volts from the wall of the Baithak of Khan Ghalib vide memo. Exh.P.C/1.
3. As co-convict Mandoos Khan made his escape good, therefore, he was got declared proclaimed offender. However, appellant Amrood Khan was sent up to answer charge before Sessions Judge, Swabi. The appellant did not plead guilty to the charge read over to him by the trial Court, therefore, to substantiate the accusation the prosecution examined as many as 10 witnesses including complainant Taj Wali and Faqir Sher as eye-witnesses as well as one C.W. Sabz Ali Khan.
Thereafter, statement of appellant was recorded under section 342, Cr.P.C. Wherein he pleaded innocence but simultaneously did not deny happening of the incident, as such, for the sake of convenience it would be appropriate to reproduce hereinbelow relevant para. From his statement:- - ' "I am innocent and falsely charged. I had no motive whatsoever to kill the deceased. In fact, on the night of occurrence I was present in the Hujra where it was dark, when in the meantime indiscriminate firing started, done by Sher Haider and Abdul Wakeel my enemies in which I alongwith the deceased received injuries and on that behalf I made report registered at Serial No,372 on the same date charging the said Sher Haider and Abdul Wakeel."
' It is important to note that prosecution cancelled the F.I.R. No,372, dated 23rd July, 1998 lodged by appellant, subsequently having been found it incorrect.
4. Learned trial Court vide judgment, dated 1st February, 1992 convicted/sentenced the appellant under section 302/34, P.P.C. To death on 5 counts. Besides, under section 307/34, P.P.C. He was sentenced to suffer 5 years' R.I. And to pay a fine of Rs,5,000 and in default of payment to suffer six months' R.I. On two .Counts. However, both the sentences were ordered to run concurrently.
Appellant Amrood Khan challenged his conviction and sentence by filing Criminal Appeal No,21 of 1992. Learned trial Court also forwarded record to Peshawar High Court, Peshawar for confirmation or otherwise of death sentence in terms of section 374, Cr.P.C.
5. Learned Division Bench of Peshawar High Court vide impugned judgment, dated 12th February, 1995 dismissed the appeal of the appellant and confirmed the death sentence.
6. Learned counsel contended that prosecution has failed to establish guilt against appellant because the incident had not taken place in the manner as it has disclosed by the prosecution, therefore, notwithstanding the plea of convict during trial he deserves to be acquitted of the charge.
7. Learned counsel for the State argued that P.Ws. Taj Wali and Faqir Sher have furnished consistent, trustworthy and confidence-inspiring evidence to bring home guilt against appellant and their statements get independent corroboration from recovery of empties from Hujra Basukhail, medical evidence produced by P.W. Dr. Muhammad Riaz, as such, he has been rightly found guilty for the offence charged against him alongwith co-convict Mandoos Khan.
8. Learned counsel for complainant argued that prosecution produced overwhelming incriminating evidence against appellant to establish accusation, therefore, impugned judgment deserves no interference.
9. We have heard learned counsel for parties at length and have also examined impugned judgment as well as evidence so brought on record to establish accusation carefully. It is a well- settled principle of dispensation of justice in criminal cases that guilt against an accused must rest surely and A firmly on the evidence produced in the case and plain inferences of the guilt may irresistibly be drawn from the evidence. (PLD 1970 SC 10). Therefore, following this principle the evidence brought on record by prosecution through P.Ws. Taj Wali Khan (complainant) and Faqir Sher will be examined. Both these witnesses have furnished strong, trustworthy and consistent incriminating evidence against appellant Amrood Khan. They demonstrated completed unanimity in deposing that on calling by appellant and co-convict Mandoos Khan to Hujra Basukhail for effecting compromise in respect of an altercation which had taken place few days back, both of them alongwith Liyas Khan, Saeed-ur-Rehman, Samiul Haq, Bashir and Shafi-ur-Rehman went to the Hujra where appellant Amrood Khan alongwith Mandoos Khan and P.W. Said Qayyum (not produced) were already present. No sooner the witnesses. Alongwith others sat down on the cots the accused party started firing upon them, as a result whereof Liyas Khan, Said-urRehman, Samiul Haq, Bashir and Shafi-ur-Rehman received bullet injuries and died at the spot whereas P.W. Said Qayyum and appellant Amrood Khan also sustained injuries as a result of firing by Mandoos Khan.
The witnesses successfully qualified the test of cross-examination, which though was sufficiently lengthy, but they stood firm as a consequence whereof defence failed to extract anything favourable to accused. The scrutiny of statements. Of both the witnesses abundantly makes it clear that appellant and co-convict Mandoos Khan targeted deceased persons successfully except complainant Taj Wali Khan and Faqir Sher. Inasmuch as, one of the persons namely Said Qayyum (not produced) and appellant also sustained injuries. It may be noted that defence has not denied the fact of receiving injuries by appellant Amrood Khan, although its plea was that firing had taken place in the Hujra Basukhail at the hands of Sher Haider and Abdul Wakeel stated enemies of Amrood Khan, which result in instantaneous death of Liyas Khan and 4 others and causing injuries to one of the witness P.W. Said Qayyum (not produced) as well as to appellant himself. From such plea of defence it can safely be concluded without even a slightest doubt that incident had taken place in the Hujra Basukhail where admittedly Amrood Khan and co-convict Mandoos Khan were present with P.W. Said Qayyum.
10. As far as victims are concerned they were not armed because it is nobody's case that they on coming to Hujra Basukhail had fired upon the accused persons including P.W. Said Qayyum. After drawing such irresistible conclusion there remains no necessity to ascertain the place of incident and the manner of firing which had taken place in the Hujra nor there could be any dispute that the complainant side was aggressors.
11. The evidence furnished by both these witnesses i.e, complainant Taj Wali and Said Qayyum without any hesitation can be stamped to be fully reliable. However, supposingly if they have furnished unreliable evidence then of course prosecution had left with no direct evidence for bringing home guilt against accused facing trial. In addition to it, even if they have furnished partially reliable and partially unreliable evidence then it would have become necessary for us to appreciate their evidence by applying the principle of sifting grain out of chuff but the evidence of both these witnesses did not suffer from any infirmity or discrepancy. But to be on more safe side and to further ensure safe administration of justice corroboration can be sought from the medical evidence being conformity in its nature furnished by P.W. Dr. Muhammad Riaz. He in his deposition has given details of fire-arm injuries received by all the deceased. There is no need to discuss medical evidence in detail because facts and circumstances of the case narrated hereinabove persuade us to hold that appellant and co-convict Mandoos Khan were at the spot duly armed is not disputed, therefore, a question of fact which has been accepted to be true need not to be proved in terms of Article 18 of Qanun--e-Shahadat Order, 1984.
12. Learned counsel for appellant next contended that as per report of Forensic Science Laboratory the empties of 7.62 bore recovered from the place of incident were fired from three kalashnikovs, because the report is divided into three paras. And each one of them has given out the number of crime empties with its marks with the opinion that they were fired from 7.62 mm (kalashnikov), therefore, according to him inference may be drawn that because it has not been mentioned in the report in one para. About the status of empties, as such, it would mean that these empties were fired from three different kalashnikovs.
13. Learned counsel for the State and complainant vehemently opposed the arguments of the learned counsel for the appellant.
14. In the instant case before registration of F.I.R. No,373, dated 23rd July, 1988 appellant Amrood Khan got registered F.I.R. No,372, dated 23rd July, 1988 in respect of same incident wherein he named Sher Haider and Abdul Wakeel as accused for the commission of offence but it was cancelled by the police subsequently. From this fact inference can be drawn that the appellant Amrood Khan did not run away as he also admittedly received injuries in respect whereof he lodged F.I.R. No,372 of 1988 before his arrest in F.I.R. No,373 he succeeded in removing the crime weapon, which was not recovered from Hujra Basukhail.. As far as co-accused Mandoos Khan is concerned, he however, succeeded in making his escape good and after about four years of the incident was arrested as he statedly himself surrendered before the police. Therefore, in absence of crime weapons it is not possible to accede to the argument raised by learned counsel because acceptance of such argument would mean recording findings based on conjectures or on unacceptable probabilities, which is not permissible under the law. As such merely for the reason that in the report Exh.P.C./1 status of empties has been noted in three paragraphs, it is not probable to infer that three different kalashnikovs were used in the commission of the offence.
15. This aspect of the case can also be attended from another angle without prejudice to the case of the prosecution namely that evidence furnished by an expert is always treated to be of confirmatory nature qua the ocular testimony and if latter kind of evidence is trustworthy, confidence-inspiring and consistent then the expert opinion will not outweigh it. Reference in this context may be made to the case of Muhammad Hanif v. The State (PLD 1993 SC 895) and Sarfaraz alias Sappi and 2 others v. The State (2000 SCM R 1758).
16. Learned counsel for the appellant then contended that prosecution has withheld best kind of evidence of Tayyab Qayyum son of Said Qayyum to prove that the complainant party was called by counts in the Hujra Basukhail through him to effect compromise, therefore, adverse inference favour to counts may be drawn against prosecution.
17. In our considered opinion this argument is devoid of force because incident had taken place in the Hujra Basukhail where both the accused were present duly armed with weapons whereas complainant party including the deceased went there unarmed, as there is no allegation of cross- firing against them, as such, non-production of Tayyab Qayyum will have no adverse bearing on prosecution case.
18. Learned counsel also contended that Investigating Agency failed to recover blood-stained earth from the place of incident as well as from the cots on which all the five deceased alongwith others sat down, thus for this reason as well adverse inference be drawn against prosecution.
19. As far as the question of non-securing of blood-stained earth from the place of incident is concerned, it is not important because this exercise is normally carried out by the police in order to determine the place of incident whereas in the instant case there is no doubt about the place where incident took place. Even otherwise, in the site plan Exh.P.B., Investigating Officer had appended note to the effect that on account of rain on the day of incident the blood stains were washed away. Similarly non-recovery of blood stains from the cots is not important for the reasons mentioned hereinabove. Even otherwise there is strong reasons to believe that these very cots were used by the complainant party for removing the dead bodies firstly to the police station as per contents of F.I.R. And from there to hospital. Thus for these reasons the contention of learned counsel is accordingly repelled being without substance.
20. Learned counsel for appellant with vehemence also argued that P.W. Said Qayyum (not produced) was most natural, independent and important witness of the incident but his evidence was withheld and prosecution did not produce him deliberately. But appellant being conscious about importance of his evidence filed an application for summoning him as Court-witness which was not allowed, therefore, presumption may be drawn that if he would have appeared, he had unveiled the actual story of the incident and had exonerated appellant from the accusation.
21. Learned counsel for the State as well as counsel for complainant contended that prosecution had no obligation to produce a good number of witnesses to establish accusation because it is the quality of evidence and not quantity which matters.
22. It is settled proposition of law that prosecution must produce best kind of evidence to establish accusation against accused facing trial but simultaneously it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are sufficient to bring home guilt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality of the evidence, which gets preference. In forming this view we are fortified with the judgments reported in Allah Bakhsh v.
Shammi and others (PLD 1980 SC 225) and Sarfaraz alias Sappi and 2 others v. The State (2000 SCM R 1758).
23. It is also a matter of great concern that due to lack of moral values in society nowadays, no one involves himself in such litigation and also refrains from giving evidence against criminals, who are charged for the offences of heinous nature including murder and dacoity etc. Because State does not provide them protection later on for lack of good governance. It may also be noted that evidence of P.Ws. Taj Wali and Faqir Sher had been declared believable, therefore, their statements are sufficient to establish case against appellant. Because defence had not attributed allegation against them for giving evidence on account of ulterior motives as well as due to animosity in any manner. While making these observations we have kept in our mind that in the incident, which had taken place in the Hujra Basukhail belonging to appellant, the witnesses have no reasons to involve him as well as co-accused Mandoos Khan in the commission of the offence falsely and allowing thereby the real culprit to go escort free because in our country the phenomena of substitution is very rare. As such, we are not impressed from this argument of the learned counsel as well.
24. Learned counsel for appellant vocally argued about the manner of happening of incident and to elucidate his submission he pointed out that admittedly Amrood Khan sustained fire-arm injury on his person but prosecution has suppressed it, therefore, this reason according to him is itself sufficient to hold that the incident had not taken place in the manner as it has been disclosed by the prosecution but it has taken place in the manner as accused had disclosed during trial that the incident had been actually committed by his enemies namely Sher Haider and Abdul Wakeel who after achieving the object successfully fled away but appellant and co-convict Mandoos Khan were involved falsely in the commission of offence.
25. Learned counsel for State and complainant repudiated the contention of the appellant's counsel by reiterating their arguments in respect of the happening of the incident in Hujra Basukhail, therefore, according to them in given circumstances of the case possibility of self- infliction of injury by appellant Amrood Khan on his leg to save his skin from the liability of murder of five persons cannot be overruled.
26. It is true that in F.I.R. Taj Wali did not mention that appellant Amrood Khan also sustained injury but he and P.W. Faqir Sher in unequivocal terms stated in Court statement that firing was made by appellant Amrood Khan and Mandoos Khan in which latter sustained injuries, therefore, it is not correct to say that prosecution has suppressed the injuries received by the appellant in the incident. Moreover, apart from the prosecution evidence the appellant had himself introduced a special plea that firing was done by Sher Haider and Abdul Wakeel, as such now onus is on the accused to substantiate his plea, failing which adverse inference will be drawn against him as per the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984. In this context reference may be made to the case of Abdul Haq v. The State and another (PLD 1996 SC 1) wherein it has been held that "when a person is accused of any offence, burden of proving the existence of circumstances bringing his case within general or special exceptions in the Penal Code or any other law is upon him and the Court shall presume absence of such circumstances". Besides the cumulative effect of the evidence available on record suggest to hold that it was the appellant, who alongwith co- convict committed the crime and if he had sustained a bullet injury on his leg it would not be sufficient to disbelieve the case of prosecution or to extend any benefit to him, under the circumstances.
27. Learned counsel alternatively argued that appellant Amrood Khan is in custody from 1988 and is confined in condemn cell with effect from 1st February, 1992. Besides it there are discrepancies in the prosecution case, therefore, he is entitled for lesser sentence.
28. The argument seeking reduction in the quantum of sentence advanced by appellant's counsel has not impressed us for the reason that by now the principle of expectancy of life is no more applicable in Pakistan as J held in Raheem Bakhsh v. Abdul Subhan and others (1999 SCM R 1190).
Moreover, the prosecution has established guilt against the appellant by producing trustworthy, coherent, confidence-inspiring and consistent evidence to prove guilt against him and even if minor discrepancies have cropped up in prosecution case but without touching the intrinsic value of the K prosecution evidence coupled with the fact that there is no extenuating circumstance in favour of the accused then the Court should not feel hesitation in awarding normal penalty prescribed by law. Reference may be made to Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452) and Gulzar Ahmed v. The State (PLD 2002 SC 42).
29. We have undertaken reappraisal of evidence to ensure safe administration of justice in the instant case, therefore, cumulative effect of direct as well as circumstantial evidence discussed hereinabove persuade us to hold that prosecution through trustworthy and convincing evidence has proved the case against appellant to the hilt. As such, no other conclusion can be drawn except that Amrood Khan son of Hameed Khan has rightly been found guilty for murders of five persons i.e, Liyas Khan and others. Thus, impugned judgment, dated 12th February, 1995 being unexceptionable admits no interference by this Court, therefore, appeal is dismissed.