2014SAC8043 (PLP)

RANA MUHAMMAD ARSHAD KHAN, C.J.

This appeal has been preferred against the judgment dated 9-10-2012 passed by the learned Division Bench of the Chief Court Gilgit-Baltistan whereby the appeal of the appellant filed against the judgment dated 20-10-2011, passed by the learned Sessions Judge Diamer, was dismissed and the conviction and sentence of the appellant was upheld.

2. Briefly, the facts of the prosecution case as stemed out from the record are that an indictment No. 58/2001 (Exh.P.W.2/B) was registered, under section 302, P.P.C. with Police Station Darail District Diamer, for causing the murder of Bashir Ahmed by Latif-ur-Rehman, on the application (Exh.P.W.2/A) made by one Nazir Ahmed son of Abdul Nabi appellant. On the fateful day, at about 10-00 a.m., the complainant alongwith his father Abdul Nabi and uncle Bashir Ahmad had proceeded from Naokot towards Kotogah Forest in order to collect the firewood from the forest and while reaching there, they started collecting the firewood. Latif ur Rehman and Niaz Ullah also reached there, having ropes and hatchets with them. Both were resident of Naokot and they went towards a place where Bashir Ahmed was busy in collecting the firewood. After a short while, the complainant had heard the voices of cries. He rushed towards that place and saw that his uncle Bashir Ahmed who had already fallen on the ground after sustaining first injury on his neck at the hands of the convict/appellant. The accused, within his view, gave another hatchet blow on the head of Bashir Ahmed deceased. Latif-ur-Rehman, thereafter, decamped from the venue of occurrence while leaving behind the weapon of offence i.e. hatchet. This incident was also witnessed by Abdul Nabi and Niaz Ullah who were present there at the time of occurrence. The motive behind the occurrence as narrated in the FIR was that Bashir Ahmed had to take back the loan advanced to the accused, outstanding against him and he was not interested to return the same and on account of that he nourished the grudge and caused the murder of Bashir Ahmed.

3. On the registration of case the investigator (P.W.4) immediately proceeded towards the place of occurrence. He made an inspection of the venue of occurrence. He took the dead body of the deceased in the possession and prepared the Inquest Report (Exh.P.W.4/B). He also prepared the un-scaled Site Plan (Exh.P.W.4/A). He had taken in possession the brown colour cap along with blood stained Mufflar. The weapon of offence i.e. hatchet was also taken in possession vide memo. (Exh.P.W.3/B). The blood-stained clay was secured vide memo. (Exh.P.W.3/A). The statements of the witnesses were recorded under section 161, Cr.P.C. The accused was arrested on 31-12-2001 and was sent to Judicial Lockup on 14-1-2002. On the accomplishment of the investigation a report under section 173, Cr.P.C. was prepared while placing the name of Latif-ur-Rehman in column No. 3 of the report and after completing all the required legal formalities, submitted the challan in the trial Court.

4. On the receipt of the Challan, the learned trial Court framed the charge against the appellant under section 302, P.P.C. on 8-9-2004 to which he did not plead guilty and claimed the trial.

5. During the course of trial the prosecution in order to substantiate its case, produced as many as five witnesses. The ocular account was furnished by Niaz Ullah (P.W.1), Nazir Ahmed (P.W.2) and Abdul Nabi (P.W.3), whereas, Jamshed son of Abdul Hakeem was given up. On the conclusion of the evidence, the accused was examined under section 342, Cr.P.C. and all the incriminating material was put to the appellant in order to seek his explanation regarding the accusation and also to know his respective defence. He denied the allegation and professed his innocence. However, he did not opt to appear to give evidence on oath in disproof of charge in terms of section 340(2), Cr.P.C. nor he adduced the defence evidence. In an answer to Question No. 6 in a statement under section 342, Cr.P.C. that why this case has been registered against you, the appellant replied as under:- "P.Ws. Jamshed and Nazir are my opponent and due to their conspiracy this false and fabricated case has been registered against me."

6. On the conclusion of the trial the learned trial court convicted the appellant herein under section 302(b), P.P.C. and sentenced him to suffer life imprisonment. He was ordered further to pay Rs. 2,00,000 as compensation in terms of section 544-A, Cr.P.C. to defray the same to legal heirs of the deceased, if recovered and in default of payment, he would undergo another six months' imprisonment. The benefit of section 382-B, Cr.P.C. was also extended to the convict.

7. The learned counsel for the appellant vehemently contends that the prosecution has failed to produce any independent witness in order to prove the case against the appellant. The learned counsel for the appellant mainly contended that the ocular evidence is contradictory and the presence of eye-witnesses is not free from doubt, as such this kind of evidence cannot, in any manner, be relied upon for conviction and sentence of the appellant. He argued further that Niaz Ullah (P.W.1) was produced by the prosecution who did not support the prosecutions case stating that he was at such a distance from where he could not see the place of occurrence. Nazir Ahmed (P.W.2) and Abdul Nabi (P.W.3) being paternal nephew and real brother of the deceased respectively cannot be relied upon to convict the appellant as they are interested witnesses being closely related with deceased and in this view of the matter the evidence of afore-cited witnesses cannot be relied upon to convict the appellant. The evidence of the eye-witnesses suffers from material contradiction and is based on interested and inimical evidence as such this evidence requires independent corroboration which is lacking in the case in hand. He maintained that the evidence produced by the prosecution is neither unimpeachable nor trust worthy and the same cannot be relied upon to award sentence to the appellant while keeping in view the circumstances of the case in hand. He contends further that this a case of no evidence and the evidence brought on the file by the prosecution is not worthy consideration as being not trust worthy and confidence inspiring. No importance can be attached to recovery of weapon of offence from the place of occurrence and taking into possession blood stained earth. The learned counsel for the appellant laid emphasis while stating that there was no motive at all against the convict to cause murder of the deceased and the motive alleged by the prosecution is of no avail at all. He contended further that if the motive is alleged by the prosecution, it becomes the foremost duty of the prosecution to prove the same and if the prosecution fails to prove the same, it casts a serious doubt upon the case of the prosecution. The learned counsel for the appellant lastly contended that the police had not got conducted the postmortem on the dead body of the deceased and cause of death could not be ascertained, which casts a serious doubt on prosecution case. He submitted that the appellant, in the circumstances of the case, deserves to be acquitted.

8. The learned Advocate-General on the other hand appearing on behalf of the state has opposed the stand taken by the defence on the ground that the occurrence had taken place on 30-12-2001 at about 10-00 a.m. and the case was registered on the same day at 11-00 a.m. The FIR was lodged with promptitude, nominating the appellant as an accused who was previously known to the P.Ws. The complainant and Abdul Nabi (P.W.3) had no previous enmity with the appellant to implicate him falsely. That it was a broad day light occurrence and mere relationship of the witnesses with deceased cannot render their evidence worthless and untrust worthy. They cannot be termed interested witnesses, if otherwise, they have no reason to implicate the appellant falsely; that the appellant acted in a brutal manner while taking the life of an innocent person. He continued to argue that there was hardly a chance of misidentification of the appellant and there was no plausible reason available on the record for substitution of a killer with an innocent person. The appellant caused hatchet blows in a manner which proved fatal. Lastly, he argued that the appellant does not deserve any leniency and sympathy while awarding sentence.

9. We have heard the learned counsel for the appellant and the learned Advocate-General Gilgit-Baltistan for the State at a considerable length and also gone through the entire record with the assistance of the learned counsel for the respective parties very minutely.

10. The occurrence in the instant case had taken place on 30-12-2001 at 10-00 a.m. in the area of Jungle Kotogha. The FIR was recorded on an application (Exh.P.W.2/A) made by Nazir Ahmad son of Abdul Nabi in the name of SHO, Police Station Darail, District Diamer and a formal FIR (Exh.P.W.2/B) was recorded at 11-00 a.m. dated 30-12-2001. Keeping in view circumstances, there was absolutely no delay at all in lodging the FIR with regard to the murder of Bashir Ahmed real paternal uncle of the complainant. The promptitude lodgment of the FIR rules out the chances of registration of the case after consultation and deliberation or concoction of the facts for false/fake implication of the appellant as accused. It has now been established that the prompt lodgment of the FIR can be a circumstance which extends the corroboration to the ocular account. The perusal of the FIR reveals that the story given by the complainant seems to be natural and their presence at the venue of occurrence cannot be ruled out in the circumstances of the case.

11. The prosecution, in order to substantiate its case, got examined Niaz Ullah, Nazir Ahmed and Abdul Nabi as eye-witnesses. The plain reading of the testimony of Niaz Ullah (P.W.1) makes it abundantly clear that Abdul Nabi and Nazir Ahmad PWs were present at the place of occurrence along with other people. Niaz Ullah son of Qalar Shah (P.W.1) in his statement stated that he had accompanied the deceased along with appellant to cut firewood in Kotogha Forest Darail. It is pertinent to note that Bashir Ahmed deceased and the appellant both together had gone towards one side of the forest and Nabi Ullah had gone to the different side of the Jungle to collect the firewood, he has not denied the factum that he had heard the cries from the side in which Bashir Ahmed and Latif-ur-Rehman had gone and when he came to the place of occurrence, he had found Bashir Ahmed dead. The statement of P.W.1 makes it abundantly clear that he had seen the convict/appellant along with Bashir Ahmed deceased lastly going together to one side of the Jungle which was not absolutely far away from him. In this view of the matter it becomes quite clear that the appellant was lastly seen with the deceased, who was present in jungle and this important factum of the case has been denied by the convict, whereas, Niaz Ullah (P.W.1) has very categorically stated that the convict was present in Jungle and had been seen lastly with the deceased. So, the assertion of the learned counsel for the appellant is not tenable and the same is repelled, when the evidence of prosecution is evaluated in its totality it would be seen as to whether (P.W.1) was the only eye-witness of the occurrence and if it is not so, the remaining evidence of the prosecution would be taken into consideration for the just decision of the case and to meet the ends of justice.

12. The examination of the record reveals that Nazir Ahmed (P.W.2) and Abdul Nabi (P.W.3) son and father respectively were also the eye-witnesses of the occurrence. The argument of the learned counsel for the appellant that they being the father and son are closely related with deceased Bashir Ahmed who was real brother of Abdul Nabi and paternal uncle of Nazir Ahmed complainant. Now the question arises as to whether the testimony of these two closely related witnesses is to be discarded and is not liable to be read and no conviction can be maintained on the basis of the testimony of afore-referred eye-witnesses. It is settled principle of law by now that mere close relationship of witnesses with deceased cannot be termed as interested witnesses. The testimony of such witnesses can only be discarded if they have some cogent reason to implicate the accused falsely. The defence has not brought even an iota of evidence on the file to prove that they were the interested witnesses even no question with regard to false implication of the convict has been asked. Nazir Ahmed (P.W.2) and Abdul Nabi (P.W.3) remained consistent in their statement throughout and the defence could not shatter the veracity of evidence despite searching cross-examination. The defence could not bring on record any discrepancy in their statement to dislodge the case of the prosecution. The statement of the complainant has fully been corroborated by Abdul Nabi another eye-witness. On the basis of straight forward, unanimous and consistent ocular testimony of eye-witnesses, the presence of P.Ws. at the site cannot be doubted rather the prosecution has succeeded to establish their presence through trust worthy evidence which does not suffers from any inherent defect, infirmity, material lacuna or contradiction. Mere relationship of the witness with deceased per se does not render them as interested or partisan witnesses. The intrinsic value of their evidence could not be shaken during the cross-examination and they remained stood fast in their statements against the convict.

13. The recovery of incriminating weapon i.e. hatchet from the spot was taken into possession vide Memo (Exh.P.W.3/B) by the investigator attested by Abdul Nabi in token of its correctness. The blood stained earth was also taken into possession vide memo (Exh.P.W.3/A) which proves the establishment of the place of occurrence beyond any doubt.

14. The argument of the learned counsel for the convict that the postmortem was not got conducted on the dead body of the deceased and in the absence of the postmortem report the injuries said to have been sustained by the accused on different parts of the body cannot be established which causes a serious doubt about the occurrence and further, the real cause of death can also not be ascertained without conducting post mortem on the dead body and in the absence of ascertainment of cause of death, the appellant cannot be held responsible for causing death of the deceased. The perusal of the record reveals that investigator had immediately reached at the place of occurrence and prepared the inquest report and in its column No. 10 clearly mentioned that there were two injuries of the hatchet, one on the head and the other on the neck of the deceased. In the presence of this inquest report, even if the Post Mortem has not been got conducted by the Police, it shall have no bearing on the merits of the case of the prosecution at all for the reason that the cause of death could have been ascertained very conveniently, as there was no other injury, on the body of the deceased, to be mentioned about. It is also established that the convict caused two hatchet blows on the vital part of the body of the deceased in order to take his life.

15. It is not out of place to mention over here that when the cause of death is apparent and the postmortem examination was not conducted, then non-conducting the postmortem examination was not fatal to the prosecution case. In the instant case the injuries were apparently caused by hatchet within the view of the witnesses so if the postmortem was not conducted at the dead body, it can hardly make any difference in the presence of confidence inspiring ocular account.

16. The next point requiring consideration relates to the motive behind the occurrence. This is a settled principle of criminal law that the absence and weakness of the motive can hardly be a ground to disbelieve the eye-witness account, if it is otherwise found trustworthy, independent and confidence inspiring. The learned counsel for the appellant failed to persuade us that either the ocular account was not truthful or appellant was substituted for some unknown accused due to the enmity. Though the appellant has stated that he was implicated in the case falsely on account of enmity but he has not been able to establish on the record any enmity whatsoever with the deceased or P.Ws. during the cross-examination or by producing evidence in his defence before the trial court. The minute perusal of the prosecution evidence makes it abundantly clear that it was such an occurrence which cannot be said to be unseen. Even otherwise, the substitution is rare phenomenon and the motive is absolutely not essential ingredient of crime, therefore, the absence of motive and its weakness may not reflect upon the direct evidence. The deposition of eye-witnesses is established on the record and their testimony is so straight forward which can hardly create any doubt about their presence at the site.

17. It has been well settled in criminal cases that it is quality and not the quantity of evidence which is required to prove the case with regard to the guilt of the accused. In criminal cases, even the evidence of a single witness can be relied upon, if his evidence is found to be trust worthy and is of unimpeachable character. The case of "Arshad Mahmood v. The State" (2005 SCMR 1524) may be referred, in which, it has been held, which reads as follows:- "Quality and not quantity of evidence was required to prove against the accused . Conviction of accused in circumstances could be based on sole evidence of mother of deceased."

18. It has also been held in a number of cases decided by the superior courts that no particular number of witnesses is required to prove the prosecution case. Even solitary witness is sufficient to prove the prosecution story, if his testimony is reliable and confidence inspiring. In the instant case, the ocular account has been furnished by the (P.W.2) and (P.W.3) as being closely related, but the defence could not bring anything on the record to establish that the evidence of eye witnesses was not reliable, confidence inspiring and trust worthy.

19. So far the question of juvenile issue of the convict/appellant is concerned, it has not been taken seriously by the appellant during the trial neither any application nor any other request was made to the learned trial court for determination of his age under the law. After the conviction, the appellant raised this point before the appellate court while presenting a copy of National Identity Card indicating his date of issue as 29-4-2010. The learned judges of the appellate court has seriously taken into consideration this aspect of the case but they found the same suspicious and they did not relied upon the same holding that it had been procured at a later stage. It was the foremost duty of the appellant to raise the question of juvenile at the earliest possible so that the same could be gone through under the law. If all that has not been done, it means the appellant himself was not ready to take this concession given by law to him so at this juncture, the appellant has also not brought anything before the court from which it could be determined that he was juvenile at the time of occurrence. Mere assertion that his age is written in the statement when he was examined under section 342, Cr.P.C. The same can also not be taken so seriously because on the conclusion of the trial, age of the appellant given in statement under section 342, Cr.P.C. is tentative and proof at that time was required with regard to the correctness of the age.

20. Yet there is another aspect of the case which has not been taken into consideration by the learned courts below that what had happened actually between the appellant and deceased immediately before the occurrence nor any witness could indicate the immediate cause of killing a man. It is pertinent to note that the appellant had a hatchet with him and all other companions had gone to different side of the jungle to collect firewood and the appellant as well as deceased had moved towards another side. It is borne out from the record that immediately after they moved towards the different side, the cries of the deceased were heard by the witnesses and since, they were not at a far off area from the place of occurrence, they immediately attracted the place of occurrence where the deceased was found fallen on the ground after sustaining the hatchet blow on his neck and the appellant thereafter, caused another hatchet below on the head of deceased within the view of the eye-witnesses. Keeping in view all the circumstances of the case, had here been any sudden fight, when the first injury was caused by the appellant and the deceased had fallen on the ground and he had become incapacitated to cause harm to the appellant, there was hardly any reason with him to cause another hatchet injury on vital part of body, if he was not intended to cause his murder.

21. Having considered the matter in all perspectives, we find that the appellant stands directly nominated in the promptly lodged FIR for the commission of crime, ocular account provided by the witnesses fully corroborates with the prosecution story and mere fact that postmortem was not conducted on the body of deceased, is not fatal to the prosecution case, in presence of the inquest report prepared by the Investigating Officer. The prosecution has produced credible and legal evidence to associate the appellant with the guilt and he has been rightly convicted and sentenced by the trial Court. The findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The impugned judgment has been passed on the basis of correct application of law and proper evaluation of evidence. The defence has failed miserably to point out, in the statement of eye-witnesses, any material discrepancies or contradictions. Consequently, the Criminal Appeal bearing No.7 of 2013 fails, which is hereby dismissed and the impugned judgment is maintained and upheld. HBT/19/GB Appeal dismissed.