P L D 2004 Peshawar 143 (PLP)

4. A.S.‑I. Roohullah (P.W.11) after recording the report (Exh.PA), prepared injury sheet and inquest report of the deceased Murad Ali and dispatched the dead body of deceased to the mortuary for post‑mortem examination under the control of FC Jehanzeb (P.W.2). He then proceeded to the spot and prepared site plan (Exh.PB) at the instance of eye‑witnesses. During the spot inspection, he took into possession blood from the place where the dead body of Murad Ali was lying and sealed the same into a parcel, vide recovery memo Exh.P.W.11/1. He also took into possession blood from the metaled road and sealed the same into a parcel vide recovery memo Exh.P.W.11/2. He also took into possession last worn clothes of the deceased brought from the hospital by FC Jehanzeb (P.W.2), vide recovery memo Exh.PC/1. He conducted partial investigation and handed over the case file to Mosam Khan, SHO who carried out the remaining investigation. As the accused was absconding, FC Rafique (P.W.3) was entrusted with warrants under section 204, Cr.P.C and proclamation notices under section 87 Cr.P.C against the accused. S.H.O. Abbas Khan (P.W.7) arrested accused on 9‑3‑2000 from his house during a raid. He also recovered one .12 bore shotgun SB alongwith 16 live rounds of .12 bore and registered a separate case under section 13 Arms Ordinance against the accused. S.‑I. Zahir Khan (P.W.1) submitted complete challan against the accused under section 512, Cr.P.C.

5. Medical evidence was furnished by .Dr. Abdul Qayyum (PW‑9) who, on 5‑8‑1999 at 9.30 a.m., conducted the postmortem examination on the dead body of Murad Ali deceased and found the following:‑‑ External Examination. One firearm entry wound on the left side of back circular in shape with charring‑marks present around. The wound was situated 3" to the left of vertebral column in 11th intercostals space measuring 1‑1/2" x 1‑1/2". No exit was found. Pellets were recovered from the anterior wall of chest. Internal Examination. Thorax: Walls, ribs and cartilages, pleaurae, trachea, right left lungs, pericardium and heart, blood vessels were injured. Abdomen: All the abdominal viscera were intact and stomach contained semi digested food. Muscles; bones and joint: Muscles of chest were injured due to fire arm. Sternum and several ribs left side of chest were found fractured due to fire arm. In the opinion of doctor, death occurred due to hemorrhage and the resultant shock caused by these injuries. Probable time between injury and death: 3 to 5 minutes. Between death and P.M examination. 1‑1/2 hours.

6. Dr. Abdul Qayyum also medically examined the minors Shoaib (11/12), Khan Alain (8) and Adnan (8) and noticed fire arm injuries on their person.

7. Before the trial Court, prosecution produced thirteen witnesses to prove the charge against the accused. After the close of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C in which he denied the allegations leveled against him and claimed to have been falsely charged. He did not want to examine himself under section 340(2), Cr.P.C and he did not offer any evidence in defence.

8. The trial Court believed the prosecution evidence on the basis of ocular account which was supported by medical evidence, motive, recoveries and abscondence and the accused was convicted and sentenced as mentioned in the opening paragraph of this judgment.

9. While challenging the validity of the impugned judgment, Syed Wilayat Ali Shah, Advocate, learned counsel for the appellant submitted that there is no reliable evidence on record to connect the appellant with commission of offence; that the prosecution evidence has come through interested, partisan and related witness which is not corroborated by either medical evidence or circumstantial evidence; that the presence of the complainant at the time of occurrence is highly doubtful as he could not plausibly account for his presence at the relevant time; that non production of Hafiz Muhammad Irshad PW who is mentioned to have seen the incident according to the F.I.R and minors who sustained injuries in the incident, is another factor casting doubt on the prosecution version; that the motive attributed to the accused has not been satisfactorily proved; that the abscondence cannot be a substitute for real evidence and that the medical evidence is in direct conflict. with the ocular account supplied by complainant Yaqoob Khan PW. The learned counsel contended with force that the presence of charring marks around wound on the person of the deceased clearly tends to suggest that the deceased was fired from a close range whereas the complainant has narrated the episode in a different manner which has totally damaged the prosecution case. The learned counsel added that when a shotgun is fired, the projectiles travel in a compact mass. As the range increases, the individual pellets travel in a cone like manner. Their velocity decreases with distance. In this connection, a reference was made to section III Part II page 286 of Parikh's Textbook of Medical Jurisprudence and Toxicology. To substantiate the contentions, reliance was placed on Siraj Din v. Kala and another (PLD 1964 SC‑26), Taj Muhammad v. Resham Khan and others (1986 SCMR 823), Farman Ali and others. v. The State (PLD 1980 SC‑20), Muhammad Ilyas v. The State (1997 SCMR 25). Asghar v. The State (PLD 1970 Lah. 878). Mehmood ur Rehman v. The State (1996 PCr.L.J 238), Gul Muhammad v. The State (2002 PCr.L.J 1177) and Sahibzar v. The State (2003 PCr.L.J 699).

10. On the other hand, Mr. Tariq Javed, learned Deputy Advocate General for the State assisted by Mr. Sohail Akhtar, Advocate for the complainant argued that although the learned trial Judge has properly appreciated the prosecution evidence by making full discussion on the case, but the learned trial Court failed to award correct and lawful sentence to accused. It was argued that it was intentional murder and in the circumstances of the case, trial Court should have awarded maximum sentence of death to the appellant. To augment the contentions, reliance was placed on Naseer Muhammad v. The State (1985 SCMR 60), Irshad Ahmad and others v. The State and others (PLD 1996 SC 138), Fazlur Rehman and 2 others v. The State (PLD 1971 Lahore 883), Allah Bakhsh v. Shammi and others (PLD 1980 SC 225), Muhammad Iqbal v. The State (PLD 2001 SC 222), Saddar Khan and 3 others v. The State (1998 SCMR 1823), Muhammad Ali and others v. The state and others (1999 SCMR 1957), Noor Muhammad v. The State (1999 SCMR 2722), Gul Khan v. The State (1999 SCMR 304), Muhammad Salim v. The State (2001 SCMR 536), Riaz Hussain v. The State (2001 SCMR 177) an Ehsanullah and others v. The State (1996 PCr.L.J 1039 Lahore).

11. Arguments advanced by learned counsel for the parties have been taken into consideration in the light of material on record.

12. For the purpose of safe administration of justice, it is essentially required of the Court to satisfy itself whether the eye‑witnesses are natural and their presence on the spot could reasonably be believed and that whether the testimony is free from any kind of intrinsic improbabilities and in the case of an interested witness whether any corroboration is forthcoming.

13. The Court in a case involving capital punishment will not base conviction of an accused solely on the testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances in the case. On a capital charge when the accused is tried, there has to be evidence of unimpeachable character which must lead to the only inference that the accused is found guilty beyond reasonable doubt.

14. The prosecution case primarily rests on ocular testimony of complainant Yaqoob Khan PW, medical evidence motive recoveries and abscondence of the appellant.

15. Complainant Yaqoob Khan, the sole eye‑witness in this case, has consistently adhered to the prosecution version word by word and fully supported the prosecution case giving all necessary details. He has faithfully deposed what was witnessed by him. His version could not be impeached or shattered despite lengthy cross‑examination. His lodgment of F.I.R, without any loss of time and describing the role played by the accused in the commission of the offence lend full strength to the prosecution story.

16. No doubt it is a case of solitary witness but the testimony of a solitary witness itself is not a demerit or disqualification as can call for its repudiation, when otherwise it rings true and inspires confidence. The argument that the eye‑witness being the father of the deceased is highly interested, cannot be relied upon, is not tenable both legally and logically in the absence of any defect in its intrinsic and probative worth and in the absence of any motive on his part to falsely implicate the accused. It is now well entrenched principle of law that conviction can be based on the statement of solitary eye‑witness provided the same is confidence inspiring and the intrinsic worth of the same rings true and satisfies the conscience of the Court. It has been consistently held by the superior Courts that it is the quality of the evidence which is to be seen and not the quantity, and, further conviction can be based on the testimony of solitary eye‑witness if it is confidence inspiring and rings true. Prosecution need not examine every witness cited as such in the F.I.R. therefore, no adverse inference can be drawn against it if a witness not necessary in the wisdom of the prosecution, is not produced.

17. It is now a settled rule of law that if the testimony of relative is corroborated through circumstantial evidence or other pieces of evidence, then their relationship, friendship or relation with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The mere fact that a witness is relative of the deceased is not per se enough to discredit the witness unless it is established that the witness was inimical towards the accused and if it is found, that in the circumstances of the case, the presence of such a witness cannot be denied, then his evidence could not be discredited. Similarly, the evidence of any eye‑witness cannot be rejected out rightly, merely because such witness belongs to one party or the other involved in a factional dispute, if otherwise such a witness has established his veracity.

18. Learned counsel for, the appellant attempted to take benefit of non‑production of Hafiz Muhammad Irshad PW as a witness in Court and submitted that he was an important witness and was withheld by the prosecution without any reasons which casts doubt about the entire prosecution case. We are afraid, the defence could not take any advantage of this omission on the part of the prosecution. The prosecution is not bound to examine every witness of the occurrence and even someone as cited as witness. This would also not reflect adversely on the prosecution case unless there are strong reasons to support the version that if the said witness had been produced, it would have supported the defence plea. Nothing has been suggested to that effect. Hafiz Muhammad Irshad P.W. has been abandoned for a valid reason.

19. Adverting to the argument that medical evidence runs contrary to the prosecution version, it may be observed that the medical evidence is in complete harmony with the ocular testimony of the complainant and no conflict could be pointed out to create dent in the prosecution case. It is the prosecution version that the appellant fired at the deceased with shotgun. Eight pellets have been recovered from the chest of the deceased during post‑mortem examination. The recovery of pellets lends strength to the prosecution story. Regarding presence of the charring marks around the wound of the victim, it maybe noted that the victim was not a statue. On seeing the appellant, the possibility of the deceased having changed his position, cannot be excluded in the circumstances of the case. However, it is not denied 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 as held in Muhammad Hanif v. The State (PLD 1993 SC 895) and Sarfaraz alias Sappi and 2 others v. The State (2000 SCMR 1758).

20. A strong motive is alleged against the appellant and he is alleged to have done away with the deceased in order to take revenge of his insult. The motive is furnished in the F.I.R as well as in the statement of I complainant. The motive has been established satisfactorily. Anyhow, it is not denied that mere absence of weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. Motive is not considered a sine qua non for proving the offence of murder and mere absence of motive is no ground to doubt the truth of prosecution case. Muhammad Ramzan v. The State (1992 PLD 302) and Government of Sindh v. Sobharo (1993 SCMR 585).

21. No doubt it is true that the abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge and in absence of any other corroborative evidence, this evidence even if found convincing, would not be sufficient by itself to warrant the conviction of the accused person on a charge of murder, but in the instant case, the prolong and noticeable abscondence of the appellant would go a long way to corroborate and strengthen the truth of the prosecution version I and rightly treated tilting in favour of the prosecution. Aminullah v. The State PLD 1976 SC 632.

22. The occurrence in the case had taken place at 0830 hours on 5‑8‑1999. The matter was reported to the police in the Police Station within thirty minutes of the occurrence. The appellant is the only accused in the case. He fired a shot on the person of the deceased which hit the vital part of his body and the same proved fatal. The ocular account furnished by P.W. Yaqoob Khan is fully corroborated by the medical evidence. It was broad day occurrence. The complainant had no enmity whatsoever, to depose falsely against the appellant. The reason for false implication given by the accused in his statement under section 342, Cr.P.C is far fetched. The mere fact that the names of the minors, who sustained injuries in the turmoil, were not disclosed in the F.I.R is insignificant omission when considered in the circumstances of the case and does not cut the root of the prosecution case. The appellant cannot be allowed to derive premium out of it. The argument of the learned counsel for the appellant that there was a cross firing between two rival groups which resulted in the present episode and the appellant had no hand in the affair, has not impressed us. There is nothing on the file in support of the assertion. The suggestion has been clearly denied by the complainant as well as the Investigating Officer in their cross examinations.

23. The judgment cited at the bar by learned counsel for the appellant when considered in the light of the foregoing discussion, they are distinguishable in their facts and features, and have no relevance to the instant case.

24. Pursuant to above, we find that prosecution has successfully established the murder charge against the appellant who rightly stood convicted and sentenced by the trial Court. There is hardly any substantial ground for lawfully challenging the impugned Judgment. The appeal fails which is hereby dismissed.

25. Adverting to Criminal Revision No. 30 of 2003, there is no doubt that when an offence is proved, it has to be met with the maximum sentence provided therefor. However, there is no yardstick to restrict or curb the discretion of the trial Court while passing the sentence. It is the circumstances of each case which justify the severity or leniency in passing the legal sentence. In the case in hand, the trial Judge in her wisdom declined to award death sentence to the appellant. We, in view of the circumstances of the case, also feel inclined to hold the same view and endorse the reason given by the trial Court for not awarding the sentence of death. Criminal revision is also dismissed. N.H.Q/73/P Appeal dismissed.