IJAZ-UL-HASSAN, J.---Appellant Muhammad Nawaz (18/19), son of Bostan was tried alongwith Khalid (17/18) son of Sarwar and Sharafat (18/19), son of Abdul Aziz, residents of village Talhad, Tehsil and District Haripur, for the murder of his co --villager Muhammad Sajjad son of Muhammad Mehboob Khan, a young boy of 20/21 years of age.
2. The learned Additional Sessions Judge, Haripur by virtue of his judgment dated 27-4-2000 convicted the appellant under section 302(b) Part (II), P.P.C. And sentenced him to suffer life imprisonment and to pay Rs.50,000 as compensation. On recovery half of the compensation amount was directed to be paid to legal heirs of deceased and Mst. Shamroza Jan fiancee of the deceased, as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo further six months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. Accused Khalid and Sharafat were, however, given the benefit of doubt and acquitted.
3. We have before us Criminal Appeal No.27 of 2000 filed by Muhammad Nawaz against his conviction and sentence and Criminal Revision No.13 of 2000 filed by complainant Mirbaz for conversion of the sentence of the appellant from life imprisonment to death and enhancement in the amount of compensation. This judgment will dispose of both the matters.
4. The crime in question, leading to the murder of Muhammad Sajjad, is alleged to have taken place on 1-10-1993 at about 13-45 hours near a place 'Mausooma' Bagh Soka, in the limits of village Talhad, distant 23/24 kilometres from Police Station Hairpur. The report about the incident was lodged the same day in Police Station at 17-00 hours by complainant Mirbaz and it was recorded by Saiful Malook Khan (P.W.8) who was then posted as A.S.-I. Police Station Saddar, Haripur.
5. Shortly narrated the prosecution story is that on the day of occurrence complainant Mirbaz accompanied by his grandson Muhammad Sajjad left the house for offering Jumma prayers in the village mosque. Muhammad Sajjad deceased was a little ahead of the complainant. When they reached near the venue of occurrence at about 1-15 p.m. Muhammad Nawaz (appellant), Khalid and Sharafat (acquitted co-accused) were found standing on the road side. Muhammad Nawaz was having with him a pistol of .30 bore. Having seen the deceased, Khalid and Sharafat raised '
Lalkara' and commanded Muhammad Nawaz to kill the deceased. On showing positive response to command of Khalid and Sharafat, Muhammad Nawaz fired with his pistol at the deceased with which he was hit and died there and then. After accomplishing the mission the accused bolted away from the spot. Mst. Waseem Jan were of Gul Faraz, Mst. Mubarak Jan were of Sarfaraz and many other co-villagers of the deceased were stated to have witnessed the occurrence.
6. Explaining the motive it was disclosed that Mst. Shamroz Jan daughter of Wazir Muhammad was engaged to the deceased which caused annoyance to Bostan, father of Muhammad Nawaz who was interested in the hand of the girl for his son Hakeem Khan. This refusal on the part of Wazir Muhammad was stated to have caused bad blood between the two families.
7. A. S.-I., Saiful Malook Khan (P. W.8) after recording the report (Exh. P. A.) at the behest of complainant Mirbaz (P.W.7) proceeded to the spot and on reaching there prepared inquest report and injury sheet (Exh.P.W.1/2 and Exh.P.W.1/3) of the deceased and dispatched the dead body to the mortuary for post-mortem examination. He took into possession blood-stained earth and blood- stained pebbles from the place where the dead body of deceased was laying and sealed the same into parcel vide recovery memo. (Exh.P.W.4/1) in the presence of marginal witnesses. As it was night time, he could not prepare site-plan. Muhammad Nazir, I.H.C. Was detailed to guard the spot. On the next morning he took into possession 4 empties of .30 bore pistol (P.5) and one missed cartridge (P.6) of .30 bore pistol and sealed the same in parcel vide recovery memo. (Exh.P.W.4/2) in presence of marginal witnesses. He prepared site-plan (Exh.P.B.) at the pointation of the complainant and other eye-witnesses. F.C. Muhammad Anwar (P.W.) after the post--mortem examination brought Shalwar (P.1), Qameez (P.2) and Banyan (P.3) belonging to the deceased and a phial containing bullet (P.4) sent by the doctor which he packed and sealed into parcel vide recovery memo. (Exh.P.W.3/1) in the presence of marginal witnesses. He dispatched blood-stained pebbles and blood-stained garments of the deceased to the Chemical Examiner Peshawar. The report of the Examiner (Exh.P.W.8/6) is positive. He also dispatched four empties recovered from the spot to Fire-- Arms Expert, Peshawar.
8. The accused persons were arrested on 7-11-1993 when their pre-arrest bail was not confirmed.
Muhammad Nawaz appellant while in police custody led the police party to a poultry farm and at his pointation, a plastic sack containing a .30 bore pistol was recovered. The pistol was packed and sealed into parcel in presence of marginal witnesses. He also prepared sketch (Exh.P.W.8/3) of place of recovery in this regard. He dispatched the pistol to the Fire-Arms Expert, Peshawar. The report (Exh.P.W.8/5) of the expert is in positive. After recording statements of Sheikh Ahmad and Muhammad Mushtaq and completing the investigation, challan was submitted in Court.
9. The prosecution in order to prove its ease examined eight witnesses in all and abandoned Mst.
Waseem Jan, Mst. Mubarak Jan, Sheikh Ahmad and Muhammad Bostan as won over by the defence and F.C. Nazir Muhammad and Mehboob Khan as unnecessary.
10. Dr. Shaukat Hussain (P.W.1) Medical Officer, Civil Hospital, Haripur, on 2-10-1993 at about 6-30 a.m. Performed post--mortem examination of Muhammad Sajjad deceased and noted the following:-- Wounds: (1)Fire-arm entry wound 1/3" x 1/3" on left side of xiphisti sternum.
(2)Fire-arm exit wound --" x --" at mid thorasic level 2" left lateral to thorasic spine.
(3)Fire-arm entry wound 1/3" x 1/3" at 8th rib level at left side of chest at anterior axillary line level.
(4)Fire-arm entry wound 1/3" x 1/3" at 9th rib level at mid axillary line level on left chest 2" posterio inferior to injury No.3.
(5)Fire-arm entry wound 1/3" x 1/3" on right lumber region below 12th rib.
(6)Fire-arm exit wound on right abdomen below sub-costal margin anteriorly.
(7)Fire-arm exit wound --" x --" on T---11 level (Thorasic level) 1" left lateral to spine.
(8)Fire-arm entry wound 1/3" x 1/3" on medial surface of upper 1/3 of left thigh.
(9)Fire-arm exit wound --" x --" on upper lateral quadrant of left lip hip.
(10)Fire-arm entry wound 1/3" x 1/3" on lateral aspect of sole of right foot.
(11)Fire-arm entrance wound --" x --" posterior to right medial malleolus. Blacking is present on injuries Nos.3 and 4.
(12)Superficial skin abrision 2" x 2" on left knee joint.
(13)Superficial skin abrision posterior surface of right elbow 1" x 1".
On internal examination thorasic vertebra was found fractured whereas thorasic plaurea left side, left lung pericardium, heart, abdominal wall paritonium, disphragm, small intestines, large intestine, liver, spleen, stomach, muscles of abdomen and left thigh were also found injured. The stomach contained semi-digested food.
11. F.C. Muhammad Anwar (P.W.2) escorted the dead body of deceased Muhammad Sajjad from the spot to the Civil Hospital, Haripur for the purpose of post--mortem examination and on return handed over the last-worn clothes of the deceased bearing corresponding cut marks and a phial containing spent bullet alongwith post--mortem report to the Investigating Officer.
12. Muhammad Nazir, I.H.C. (P.W.3) is marginal witness to recovery memo. (Exh.P.W.3/1) vide which the Investigating Officer took into possession Shalwar, Qameez and Banyan of the deceased and a phial containing spent bullet (P.4).
13. Maqsood Ahmad (P.W.4) son of complainant Mirbaz identified the dead body of the deceased before police. He is also marginal witness to recovery memo. (Exh.P.W.4/1) and recovery memo.
Exh.P.W.4/2).
14. Inspector Muhammad Hafiz. Khan (P.W.5) arrested the accused persons on 7-11-1993 when their pre-arrest bail was not confirmed. He partially investigated the case and submitted complete challan in Court.
15. Muhammad Yaqoob (P.W.6) is not an eye-witness of the occurrence and claims to have come to know about the incident through his father Mirbaz complainant. He stated that on the day of occurrence he was on his way to his house from Daka Rakh and when he reached near Soka Talhad it was Jumma prayers time. He heard fire shots from Bagh Soka side. He rushed towards that place and found Muhammad Sajjad lying murdered there. He saw his uncle Janbaz running towards the place of offence. He also saw Muhammad Nawaz, Kahlid and Sharafat running from the scene of incident.
16. Complainant Mirbaz (P.W.7) maker of the F.I.R., repeated the prosecution version and charged the accused-appellant for the murder of his grandson Muhammad Sajjad deceased at the command of acquitted co-accused.
17. When examined under section 342, Cr.P.C., the accused-appellant denied the prosecution allegations and claimed to have been charged falsely on mere suspicion on account of the motive disclosed in the F.I.R. He also denied having led the police party for recovery of the crime pistol at his pointation. He declined to offer his statement on oath as required under section 340(2), Cr.P.C.
He produced no evidence in defence.rd
18. Mirza Abdullah Jan, Advocate, learned counsel for the appellant submitted that there is inordinate delay in lodging of the report and no explanation has been offered which leads to the only inference that intervening period was utilized for consultations and deliberations; that the eye- -witness account furnished by complainant Mirbaz is full of discrepancies, contradictions and dishonest improvements and stands uncorroborated by any creditworthy and legal evidence; that the site plan and medical evidence are in conflict with the ocular testimony on essential features of the prosecution case; that recovery of empties and pistol stand unproved due to non-production of witnesses alleged to have attested the recovery memo; that late dispatch of the empties and the pistol has made the recovery doubtful and that learned trial Judge had no justifiable reason to believe defective and faulty evidence of the prosecution, and made the same a basis for conviction of the appellant, To argument the submissions he placed reliance on Nazir Ahmad v, The State and another 2002 PCr.LJ 149 Peshawar, Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914 Peshawar, Islambadshah and 2 others v. The State PLD 1993 Peshawar 7, Muhammad Zaman and another v. The State PLD 1993 Peshawar 13, Muhammad Banaras and another v. The State 1988 SCMR 931, Gulzar Khan v. Mian Khan and others 1988 SCMR 935 and Zale Mir alias Zaley v.
The State 1997 PCr.LJ 510 Peshawar.
19. On the contrary Mr. Muhammad Ayub, Deputy Advocate-General assisted by Mr. Saeed Akhtar Khan, Advocate for the complainant supported the impugned judgment to the extent of conviction of the appellant but submitted that the learned trial Judge having found the appellant responsible for murder of Muhammad Sajjad deceased, had no justification to take a lenient view and award lesser punishment to the appellant. To substantiate the arguments, he placed reliance on Waris Khan v. The State 2001 SCMR 387, Muhammad Afzal and 3 others v. The State 1995 SCMB 1991, Wahid v. The State PLD 2002 SC 62, Muhammad Tariq v. The State 2003 SCMR 531 and Muhammad Rafiq alias Titai v. The State PLD 1974 SC 65.
24. We have heard in detail the arguments and submissions of learned counsel for the parties. We have also gone through the entire evidence with their able assistance.
21. The legality and propriety of the impugned judgment-has been brought under challenge principally on the ground that the F.I.R., in this case has been lodged after inordinate delay, without any plausible explanation which leads to the only conclusion that intervening period was consumed for consultations and deliberations. The submission is misconceived, It is true that the crime in question is alleged to' have taken place at about 1-45 p.m. And the matter was reported to police at 5-00 P.M. But the fact cannot be lost sight of that distance between the spot and the Police Station Haripur where the report is made, has been recorded as 23/24 kilometres. Moreover, the delay, if any, has been satisfactorily explained by complainant Mirbaz (P.W.7) when he stated that he went for report on foot till Serai Naimat Khan whereafter he hired a vehicle and went to the police station to make report. He also stated that Mehboob Khan father of deceased reached the spot after 30 minutes of the incident and till his arrival, he (complainant) did not leave the spot. The matter appears to have been reported to the police with promptitude and no adverse inference can be drawn.
22. The impugned judgment has also been criticized on the ground that ocular testimony of complainant Mirbaz (P.W.7) is in direct conflict with the medical evidence supplied by Dr. Shaukat Hussain (P.W.1) which is clearly indicative of the fact that the complainant was not present at the spot and had not seen the occurrence. Much stress has been laid on the presence of blackening on injuries Nos.3 and 4 and an attempt has been made to show that victim was fired from different directions and not in the manner as alleged by the complainant. This submission of the learned counsel is equally without substance. The learned counsel has not been able to highlight any discrepancy in the ocular testimony of the complainant and the medical evidence. Medical evidence and statement of complainant in our opinion do not show any serious conflict. Minor difference or variation in the ocular version and medical report does not have any material 8 significance or bearing on merits of the case. It is settled principle that casual discrepancies or conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. Obviously momentary glance, during turmoil when live shots are fired, witnesses make only tentative assessm ent about where such fire shots appear C to have landed and it becomes highly improbable to mention its location with exactitude. Even otherwise, where ocular evidence is found trustworthy and confidence-- inspiring, the same is given preference over medical evidence.
In Muhammad Rafiq alias Titai v. The State PLD 1974 Supreme Court 65, it was observed:-- "We regret we cannot accept this argument for the reason that, in the first place, it is too much to expect that illiterate or semi-illiterate witness would be able to indicate the distance in question with scientific exactitude, the second place, as observed by Burred:-- If the shot is fired with cartridge loaded with black powder the blackening range is increased because of the smoke. On combustion black powder gives only about 44% of gaseous and 56% of volatile products, and it is this large percentage of volatile solid products, of combustion which cause the heavy smoke. And the smoke is far more potent to deposit blackening than the gases generated by the combustion of nitro powders."
23. The ocular evidence in this case has been furnished by Muhammad Yaqoob (P.W.6) and complainant Mirbaz (P.W.7). Both these witnesses are closely related to deceased. Muhammad Yaqoob (P.W.) does not claim to have seen the appellant firing at the deceased. He narrated at the trial that on hearing the report of fire shots when he rushed towards the venue of occurrence he saw the appellant and acquitted co-accused running from the spot. He was informed by his father Mirbaz P.W. That appellant fired at deceased with .30 bore pistol resulting in the death of deceased.
Complainant Mirbaz, however, fully supported the prosecution story and claimed to have seen the appellant firing at the deceased with his .30 bore pistol. This witness, in our opinion, has reasonably accounted for his presence at the spot. He has no animus against the appellant and acquitted co- accused. He has given a very accurate account of the incident and we see no good reason to discard his testimony simply for the reason that on account of having close relationship with deceased, he is an interested witness. He was subjected to extensive cross---examination to shatter his veracity but nothing material could be elicited from his deposition.
24. Two ladies namely Mst. Waseem Jan were of Gulfaraz and Mst. Mubarak Jan were of Sarfaraz of Deh Talhad Haripur, have been cited in the F.I.R. As eye-witnesses. These witnesses have been abandoned by the prosecution as won over. Learned counsel for appellant reiterated that these witnesses were independent witnesses but they have not been produced by the prosecution at the trial, therefore, inference may be drawn that if they would have appeared in the Court they might have disclosed true picture of the incident. The argument so advanced by the learned counsel carry no weight for the reason that law governing administration of criminal justice has not cast a duty upon the prosecution to produce all the witnesses who have seen the incident because it is the quality of the evidence and not quantity which matters. Of course this object can be achieved by recording evidence of even one witness if he is trustworthy. Further, the defence is always at liberty to summon a prosecution witness who has been given up with an object to unearth true facts before the Court. Thus, on account of non-producing the mentioned ladies no adverse inference can be drawn against the prosecution. Khan Badshah v. The State 2002 PCr.LJ Peshawar 1513.
25. It may be noted here that the appellant was arrested on 7-11-1993. He, while in handcuffs, led the police party to a poultry farm on 10-11-1993 wherefrom a .30 bore pistol was recovered at his pointation. Four empties of .30 bore pistol and one missed cartridge recovered from the spot oil 2- 10-1993 were dispatched to Forensic Science Laboratory Crimes Branch, Peshawar on 11-11-1993. The same were received in the laboratory on 13-1z-1993. The Fire-Arms Expert submitted his report .On 21-12-1993 whereby the .30 bore crime empties marked "C-1 to C-4" were found to have been fired from the .30 bore pistol in question.
26. The learned counsel contended that the report of the Fire-Arms Expert would not be of much evidentiary value for the reason that the pistol attributed to the appellant and the empties had remained in the custody of the police for sufficient long time and the possibility of the substitution cannot be ruled out.The submission of the learned counsel has not impressed us. It has come through the statement of P.W. Saiful Malook that pistol was recovered on 10-11-1993 and the empties were recovered on 2-10-1993. Soon after the recovery these were dispatched to the Expert which were sent back by the Expert for safe custody in 'Malkhana' till the recovery of pistol and after the recovery of pistol these were dispatched to the Expert through application (Exh.P.W.8/4). In the circumstances, recovery or safe custody cannot be doubted. 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 where the defence has been able to establish malice or ill will on the part of the police to show that the empties had been substituted to match the crime weapon. If the dispatch is found to have been delayed, said acts of the Investigating Officer can be termed as an irregularity committed during the course of investigation but it is a settled principle of law, that the procedural defects 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. In the instant case no malice has been attributed to the Investigating Officer for sending the articles with delay nor the defence had alleged substitution of crime weapon and empties. Mere delay, in the absence of malice on the part of the Investigating Officer, cannot be made a good ground for rejecting their value and worth as held in Noor Alam v. The State PLD 1978 SC 137, Sarwar and others v. The State 1987 SCMR 960 and Rab Rakhio and 2 others v. The State 1992 SCMR 793.
27. Sheikh Ahmad and Boston cited as witnesses to recovery memos of crime empties and crime weapon, have been withheld by the prosecution as won over According to learned counsel this has adversely affected the prosecution case. The submission is without force. The perusal of the statement of P.W. Saiful Malook would reveal that an application was moved on behalf of the defence to summon these witnesses as a Court-witness under section 540, Cr.P.C. Subsequently the application was withdrawn. The recoveries stand proved through independent and unimpeachable evidence and the same cannot be looked with a suspicious eye.
28. Motive leading to the present episode is stated to be that father of the appellant was interested in the hand of Mst. Shamroz Jan, daughter of Wazir Muhammad of his village, for his son Hakeem Khan but the girl was engaged to deceased, which caused annoyance to the appellant. The prosecution has succeeded to establish motive through the depositions of Muhammad Yaqoob and Mirbaz P.Ws. The submission of the learned counsel that, the motive set up by the prosecution is far-fetched and remains unproved, does not prevail. It was, held in State/Government of Sindh v.
Sobharo 1993 SCMR 585:-- "Absence or weakness of motive does not come in the way of the case of prosecution and can be condemned if there is otherwise strong and reliable evidence in support of the case."
While discussing motive it was observed in case Manzoor Ahmad v. The State PLD 1983 SC 197 as follows:-- "Failure of motive sometimes to be found to have reacted on manner of appreciation of deposition while in other cases such circumstance not to make any dent in prosecution case insofar as question of guilt or otherwise of accused be concerned, 1982 SCMR 781; 1981 SCMR 54; 1979 SCMR 214; PLD 1978 SC 462; 1977 SCMR 175; PLD 1975 SC 227; PLD 1974 SC 87; PLD 1969 SC 127 and 1968 SCMR 502. "
1977 SCMR 175 it was held as under:-- "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others.
Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-.Witnesses if they be otherwise reliable."
29. Having heard the rival contentions of learned counsel for the parties in the light of the material available on the file, we are satisfied that Muhammad Nawaz appellant is the author of the crime and he is responsible for the murder of Muhammad Sajjad deceased. We are also satisfied that prosecution evidence has been rightly assessed and appreciated by the learned trial Judge qua conviction of the appellant, which is maintained. Criminal appeal is dismissed.
30. Adverting to Criminal Revision No.13 of 2000 filed by complainant Mirbaz for enhancement of sentence of the appellant, we find that the appellant has taken the life of a young boy of 20/21 years of age by firing when he was on the way to village mosque accompanied by his grandfather, to offer Jumma prayers. Admittedly at the time of attack the victim was unarmed and at the mercy of the appellant and his confederates. The medical evidence would show that many shots were fired which resulted in the death of the deceased. The learned trial Judge while awarding sentence to the appellant admitted the tact that neither the defence has pointed out any mitigating circumstances nor there is anything in the statement of the appellant justifying lesser punishment but on the other he erred on the side of sentence in not awarding the normal penalty of death provided under the law. The sentence of life imprisonment for the offence of murder with which the appellant is charged is against facts on record and contrary to law applicable thereto. The appellant has acted in a brutal manner while committing cold-blooded murder. No mitigating circumstance existed for withholding the normal sentence of death prescribed by law for the offence of murder. The appellant has been treated with unjustified leniency and mercy and ought to have been awarded death sentence. While accepting this criminal revision we convert the sentence of life imprisonment into the sentence of death, in order to meet the ends of justice. The prayer of the complainant for enhancement of compensation is declined. The appellant shall be hanged by the neck till he is dead.
N.H.Q./899/P Sentence enhanced.