IJAZ-UL-HASSAN, J.---The appellant namely Badar Munir son of Abdullah Khan aged about 30 years, resident of Hassan Shudo, District Kohat, was tried by learned Sessions Judge, Kohat on a charge under section 302(2), P.P.C. For having committed ---Qatl-e-Amd' of his co-villager, Muhammad Ibrahim son of Haq Nawaz, aged about 41/42 years. At the conclusion of trial vide judgment, dated 20-9-2000 the appellant having been found guilty, was convicted under section, 302(b), P. P. C. And sentenced to death penalty.
2. Feeling aggrieved, the appellant has filed Criminal Appeal No. 382 of 2000 against his conviction and sentence. The learned Sessions Judge has made a Murder Reference No. 40 of 2000 to this Court under section 374, Cr.P.C. Through the aforesaid criminal appeal and murder reference will stand disposed of.
3. The crime in question, resulting, into the murder of Muhammad Ibrahim, deceased is alleged to have taken place on 21-5-1998 at 6-40 a.m. At Pick-up Adda, Kamarsar. Shakardarra, Kohat and the report (Exh. P.A./1) about it was lodged the same day at 7-00 a. m. By complainant Darya Khan P.W. Brother of the deceased in Civil Hospital Shakardarra and it was recorded by S.H.O. Lal Sardar (P.W.) stated to have reached the hospital pursuant to an information that a murder has been committed at Pick-up Adda Shakardarra and the dead body of the victim has been brought to the hospital.
4. The prosecution story in brief is, that on the fateful day i.e. 21-5-1998 at 6-40 a.m. Darya Khan complainant alongwith his brothers Muhammad Ibrahim deceased and Sabir Khan (abandoned) was present at the Pick-up Adda, Shakardarra, when in the meanwhile, Badar Munir accused came armed with a pistol and tired at the deceased from behind, as a result of which the deceased was hit and fell on the ground. After the occurrence, the accused bolted away from the spot. The complainant and his brother being empty-handed, the accused could not be apprehended. The victim was immediately rushed to Civil Hospital, Shakardarra for treatment but he expired en route to the hospital. Explaining the motive, it was stated that prior to the turmoil, a quarrel had taker.
Place between the .Complainant and his brothers with the accused on account of which the latter was nursing grudge against the former.
5. S.H.O. Lal Sardar P.W. On reaching the hospital drafted the Murasila (Exh. P.A./1) at tile instance of complainant and despatched the same to the police station through F.C. Sher Alam P.W. And on its basis case was registered. He then prepared injury sheet (Exh. P.M./2) and inquest report (Exh.
P.M./1) of the deceased and handed over the dead body to F.C. Gul Khan P.W. For taking the same to the mortuary for purpose of post-mortem examination. The S.H.0. Proceeded to the spot and prepared the site plan (Exh.P.B.) (at the instance of the complainant. During the spot inspection he, recovered blood-stained earth from the place of the deceased and one empty of 30 bore (Exh. P.5) and sealed the same into parcel vide recovery memo. (Exh. P.C./1) in the presence of marginal witnesses. He also took into possession blood-stained shirt (P.4) of the deceased produced by F.C.
Gul Khan P.W: vide memo. Exh. P.C./2. At this juncture the accused statedly apprehended the same day" from the vicinity of occurrence by F.C. Riaz Muhammad and Israr Ali Constables alongwith the crime weapon i.e. .30 bore pistol with charger having four rounds of .30 bore, was produced to S.H.O. Lal Sardar P.W. The pistol (P.1) with charger having four rounds of .30 bore (P.2) were taken into possession vide recovery memo. (Exh. P.C.) in presence of marginal witnesses. The pistol and an empty of .30 bore were sent to Fire Arms Expert, Peshawar for opinion. After completion of investigation challan was submitted in Court on 10-6-1998.
6. The medical evidence was furnished by Dr. Hamidullah Jan, Medical Officer, Civil Hospital, Shakardarra, who on 21-5-1998 at 8-30 a.m. Conducted the post--mortem examination of Muhammad Ibrahim and noted the following:--- External Examination A fire-arm entry wound about --" x --" in size over the back of the chest on left side in the 6th intercostal space near the dorsal spine with corresponding exit wound about --" x --" in size in the 3rd Intercostal space, near the manubrium sternii in the front of the chest on the left side.
Internal Examination Thorax: Walls, Ribs and Cartilages injured. Pleurae left lung, Pericardium and Heart, Blood Vessels also injured.
Remarks: Probable time between injuries and death was found instantaneously whereas between death and post-mortem examination about 1 to 2 hours.
7. The appellant in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely associated with the crime. He stated that at the relevant time he was in Punjab and on return to the village, he was arrested by the police on the charge of murder of Muhammad Ibrahim deceased. In answer to a question: "What is your statement and why are you charged, the appellant gave the following reply:--- "I am innocent and falsely charged. I was not present at the relevant time on the day, of occurrence. I was outside from my village. My brother has married to the sister of deceased Mst.
Fatima and they are living as husband and were together and how can I kill the deceased when my family has got such close relations with him. Actually he was killed by his enemies and 1 was later on falsely charged with the connivance of police."
"The P. Ws. Have falsely deposed against me. Actually the complainant party have got so many enemies. The complainant party had abducted a woman Mst. Jannat Mira vide F.I.R. No. 70 under sections 5/ 10/ 11, dated 17-10-1988 and the report was made by Iqbal Shah against the deceased."
8. The appellant initially declined to be examined on oath and closed defence evidence but subsequently offered to make statement on oath, and deposed that at the relevant time he was on leave and that on return from Punjab he was arrested by the police. He produced Ajab Khan, Soorat Shah, Mir Sahib, Rehmatullah and Ajab Noor in his defend.
9. In order to substantiate the charge the prosecution produced as many as seven witnesses and abandoned P. Ws. Sultan Mehmood, F.F. Riaz and Sabir Khan (eye--witness) as unnecessary. Darya Khan (P. W.4) brother of Muhammad Ibrahim deceased is the complainant in this case. He has furnished eye-witness account of the incident. Dr. Hanudullah Jan (P.W.1) has subjected the dead body of Muhammad Ibrahim deceased to post-mortem examination. Lal Sardar (P.W.7) is the Investigating Officer. The remaining witnesses are of formal nature.
10. After taking into account the material available on record and hearing arguments of learned counsel for the parties, the learned trial Judge came to the conclusion that the prosecution has succeeded in bringing home the charge against the accused beyond shadow of reasonable doubt and thereby the accused was convicted and sentenced as mentioned above.
11. We have heard at length Barrister Zahoorul Haq, for the appellant and Mr. Abdul Fayaz, Advocate for the State assisted by Mr. Assadullah Khan. Chamkani, Advocate for the complainant. We have also gone through the entire record with their able assistance.
12. Learned counsel for the appellant at the very outset submitted that the prosecution has miserably failed to prove its case against the appellant. He submitted that there is no sufficient evidence on record to justify the conviction and sentence of the appellant on a capital charge. He also argued that complainant Darya Khan (P. W.4) who is brother of the deceased was not present at the spot nor had witnessed the occurrence and that not a single independent witness from the locality had been cited or examined, as eye-witness in this case although the occurrence had taken place at a busy place i.e. In the Pick-up Adda in front of the shop of one Muhammad Younas.
He added that actually the occurrence was unseen and the eye-witnesses had been introduced subsequently as a result of pre-meditation so as to lend corroboration to the prosecution story. The learned counsel also reiterated that P. Ws. Riaz, F.C. And Sabir Khan who were the important witnesses in this case were given up by the prosecution without any reason which tends to suggest that had they been examined they would not have supported the prosecution version. The learned counsel further contended that the medical evidence in this case is in conflict with the ocular account and that motive did not exist at all, the true motive had not been disclosed and prosecution is to suffer for this silence. Adverting to the recovery of crime weapon from the possession of the appellant at the time of his apprehension and the report of Fire Arms Expert, the learned counsel maintained that the crime empty stated to have been recovered from the spot and the crime weapon remained in the custody of police for more than two months and the same were sent to the Expert for opinion and report on 7-8-1998 and that there being no explanation of the Investigating Officer for delay, the report is in consequential and of no evidentiary value and does not in any manner connect the appellant with the murder of Muhammad Ibrahim deceased.
Concluding the arguments, the learned counsel submitted that keeping in view the facts and circumstances of the case, the sentence awarded to the appellant is harsh and warrants interference of this Court. The learned counsel placed reliance on the following citations in support of his contention:--- (a)Nobahar v. The State (1999 SCM R 637); (b) Muhammad Younas Khan v. The State (1992 SCM R 545); (c) Khan Muhammad and another v. The State (1992 PCr.LJ 302) and (d) Mir Mat Khan alias Matokai v. The State (2002 PCr.LJ 1914 (Pesh.)).
13. On the contrary, learned counsel for the State has argued that the prosecution has fully established its case against the appellant and that complainant Darya Khan (P.W.4) was the natural witness of the occurrence and that his statement cannot be ignored merely on the ground that he is brother of the deceased. It has been argued that the medical evidence in this case fully supports' the prosecution version which is further corroborated by the recovery of crime weapon from possession of the appellant at the time of his apprehension. He has further argued that complainant has also deposed about the motive and there is no reason to disbelieve him in this respect. The learned counsel went on to say that the version of the accused-appellant is improbable, unbelievable and outcome of an afterthought in order to save himself from the consequences of law. In the last limb of arguments it was submitted that having regard to the facts and circumstances of the case, the appellant has been adequately punished and he is not entitled for lesser punishment. To add vigour to the contentions, the following rulings were cited:-- (a)Ijaz alias Billa and 3 others v. The State (2002 SCM R 294); (b) Amrood Khan v. The State (2002 SCM R 1568); (c) Nawaz Ali and another v. The State (2001 SCM R 726); (d) Gulzar Ahmed v. The State (PLD 2002 Supreme Court 42) and (e) Alimdad alias Khan v. The State (2002 PCr.LJ 1785 (Peshawar)).
14. It is a well-settled principle of dispensation of justice in criminal cases that guilt against an accused must rest surely and firmly on the evidence produced in the case A and plain inferences of the guilt may irresistibly be drawn from the evidence. Muhammad Luqman v. The State (PLD 1970 SC 10). Therefore, following this principle the evidence brought on record by prosecution through P.W. Darya Khan author of the report has to be seen in juxtaposition with other material on record.
15. The occurrence in question allegedly has taken place on 21-5-1998 at about 6-40 a.m. At Pick- up Adda Shakardarra, Kohat, the injured was hurriedly -rushed to Civil Hospital, Shakardarra for medical treatment where the report was lodged by complainant Darya Khan P.W. Without wastage of time at 7-00 a.m. And it was reduced into writing by S.H.O. Lal Sardar P.W. Stated to have reached the hospital on receipt of an information regarding the murder of a person in Pick-up Adda Shakardarra and arrival of the dead body at the hospital. In this report lodged by complainant with promptitude, appellant has been specifically named as murderer of Muhammad Ibrahim deceased. The complainant is a driver at Pick-up Adda and deceased was a conductor/booking clerk at the said Adda. Complainant, deceased and P. W. Muhammad Sabir (abandoned) live in' the same house. They are stated to have left on the morning of occurrence together. Their presence stands established from the record. A definite motive has also been attributed to the appellant and there appears to be no reason as to why the appellant should be implicated instead of real culprit. The prosecution has produced worthy of credence and irrefutable evidence which is considered sufficient to bring guilt home to the appellant. The statement of complainant duly corroborated by the medical evidence could not be brushed aside on flimsy ground. The complainant stood firm to the test of extensive cross-examination and nothing advantageous could be elicited in spite of searching questions. The statement of the complainant is consistent, confidence --inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case. The occurrence of discrepancies in the evidence of the prosecution witnesses is not uncommon but the question which would require determination, 'is whether the discrepancies are material so as to render the veracity of evidence of the witnesses doubtful. For determination of such question the Court would always look to the overall structure of the prosecution . Case in order to see whether the evidence of the witnesses otherwise coincide with the other circumstances of the case. If the evidence given by the witnesses coincides with the other circumstances of the case, then minor discrepancies occurring in the evidence can always be overlooked. Learned counsel for the appellant contended with force that statement of the solitary witness Darya Khan P.W. Is pregnant with serious contradictions and infirmities and should not have been made basis for conviction of the appellant. The submission of the learned counsel is not tenable. No significant discrepancy damaging the prosecution case has been pointed out.
16. It has been contended with vehemence that P.Ws. Sabir Khan and F.C. Riaz (not produced) were most natural, independent and important witnesses of the incident but their evidence was withheld and prosecution did not produce them deliberately. The submission of the learned counsel is devoid of force. The prosecution is under no obligation to produce a good number of witnesses to establish accusation because it is the quality of evidence and not quantity which matters.
17. 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, to substantiate the charge. Indeed, it is not the quantity but quality of the evidence, which gets preference. Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758).
18. Muhammad Ibrahim, victim of the assault, is stated to have succumbed to his injuries and expired while on way to the hospital. During post-mortem examination a fire-arm injury wound about --" x --" in size over the back of the chest on left side in the sixth intercostals space, near the dorsal spine with corresponding exit wound about --" x --" in size in the third intercostal space near the meanubraium sternii in the front of the chest on the left side, was found. The allegation against the appellant is that he fired a single shot with his .30 bore pistol from the behind which resulted in the murder of the deceased. The complainant has also stated so. There is no conflict between the medical evidence and the ocular account of the complainant furnished in this respect. The medical evidence fully supports the prosecution version.
19. An empty of .30 bore was recovered by the Investigating Officer during spot inspection.
Immediately after the occurrence, the accused is stated to have been apprehended from the vicinity of the occurrence by FCs Riaz and Israr Ali. They are said to have recovered the crime weapon from the fold of the trouser of the appellant. The crime empty and the crime weapon were sent to Fire-Arms Export on 7-8-1998 for opinion and report. The report of the Expert (Exh. P. E/ 1) is in positive. Microscopic examination of the case revealed that one 30 bore crime empty marked ' C' was fired from the .30 bore pistol No. D-1571 in question. The report has been questioned principally on the ground that F.C. Riaz shown to have overpowered the appellant with the help of F.C. Israr Ali, after the occurrence has been withheld by the prosecution without offering any explanation and that the crime empty and the crime weapon i.e. .30 bore pistol remained in the custody of the police for more than two months and thereafter sent to the expert on account of which the report has lost its evidentiary value. This submission is equally without force. Sending of recovered articles to the Expert with delay can only be termed fatal to the prosecution case where 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 despatch is found to-have been delayed, said act 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 defect and the irregularities and some times even the illegalities committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial. It, may be pertinently mentioned here that no suggestion has been put to the Investigating Officer on the point of delay. We are not prepared to see the recovery or report of the Expert with a suspicious eye. Noor Alam v. The State (PLD 1978 SC 137) and Rabrakhio and 2 others v. The State (1992 SCM R 793).
20. A definite motive has been mentioned in the report and it is highlighted that some time prior to the incident the appellant and the complainant party had a quarrel which actuated the appellant to take the life of the deceased. The contention of learned counsel for the appellant is that prosecution has not been able to prove motive. The submission of the learned counsel is without force. The motive stands proved through the deposition of complainant Darya Khan P.W. There is no reason for us to disbelieve the statement of the complainant in this respect, who is found totally an independent witness, having no motive for false implication and proving his presence at the spot. Even otherwise according to the law laid down in the case of Waris Khan v. The State (2001 SCM R 387) weakness of motive or its absence or where alleged but not proved would hardly make any difference.
21. The appellant in order to prove his innocence and establish that during the days of occurrence he was in Punjab and on arrival to the village was arrested by the police on mere suspicion, has.
Produced five witnesses in his defence. We have thoroughly perused the statements of these witnesses and we are of the view that the plea of alibi raised in this case is an afterthought and hardly inspires confidence. These witnesses have not been able to put a dent in the prosecution case. The findings recorded by the leaded trial Judge about the guilt of the appellant do not suffer from any legal infirmity.
22. Adverting to the question of quantum of sentence, the apex Court has time and again observed that if a case is proved against the culprit beyond reasonable shadow of doubt and offence under section 302, P.P.C. Is established, the, normal penalty of death should be awarded and leniency in any case should not be shown, except where strong mitigating circumstances for lesser sentence could be gathered from the evidence available on record. Allah Dad and another v. The State (1995 SCM R 142), Muhammad Khan v. The State (1996 PCr.LJ 1767) and Muhammad Shafique v. The State (2001 SCM R 1328).
23. In the instant case it stands established from the evidence on record that at the relevant time the victim of assault was empty-handed, and as such could not resist the attack. It also stands proved that the appellant was already present at the spot before the arrival of the deceased and hid brothers. The appellant is alleged to have tired at the deceased from a close range with his pistol as a result of which the victim was hit on vital parts of his body and lost his life. Undoubtedly the appellant fired a single shot and he did riot repeat the same but this fact alone cannot; be considered a good ground for award of lesser punishment when seen in the surrounding facts and circumstances of the case. In the circumstances, no case has been made out for grant of lesser punishment Thus, impugned judgment, dated 20-9-20001 being unexceptionable warrants no interference of this Court, therefore, appeal is dismissed and the death sentence is confirmed.
Murder Reference is answered in affirmative.