2020 PLP 110 (YLRN)

RAZA ALI KHAN, J.

The above titled criminal appeals, filed against judgment passed by the learned District Criminal Court, Rawalakot dated 28.01.2016, raise common questions of facts and law and arise out of common judgment, hence, were heard together and are decided through this single judgment. Facts forming background of the captioned appeals are that Nauman Ajmal, complainant filed a written application at Police Station Rawalakot on 08.12.2013, stating, therein, that the applicant is resident of village Draik Dhoke and is settled in Rawalpindi for earning his livelihood. Today, i.e. 08.12.2013 at 10:00 a.m. his uncle Muhammad Akram informed him through telephone that some unknown person has killed Muhammad Ajmal, father of the complainant, who was living alone. On this information, the complainant along with his brothers reached home and saw the blood stained dead body of their father was lying in the kitchen. It was submitted that the cause of delay in submitting report is that he came from Rawalpindi. At present, he has no doubt on any person. On this report FIR No. 232/15 was registered at Police Station Rawalakot on 08.12.2013 in the offence under Section 302, A.P.C. Police started investigation and concerned Patwari prepared site plan. To investigate befittingly post-mortem of the dead body was executed to legitimately construct the reason of the death. The blood of the deceased from kitchen/place of occurrence, an empty of 30 bore pistol, bullet of the gun, bed sheet, coat of the deceased lying in the Veranda and pension book were taken into custody. After postmortem, blood stained clothes and one pair slipper were also recovered. During investigation on the basis of doubt convict appellant, Moeen Naseem, real nephew of the deceased, who was living in Chak Shahzad Islamabad along with his family, was arrested. After arrest on the pointation of convict appellant, Moeen Naseem, weapon of offence i.e. Pistol, a purse along with documents, Mobile phone and stolen amount Rs.3450/- were protruded. On failure to produce license of weapon of offence, i.e. 30 bore pistol, section 13/20/65 Arms Act was also implied. The statement of the accused under Section 164, Cr.P.C. was also recorded. After investigation police submitted challan before District Criminal Court Rawalakot on 30.01.2014. The statement of the accused under Section 265-D was recorded on 19.02.2014. The accused pleaded not guilty, whereupon, the prosecution was ordered to lead evidence in support of the allegation. The prosecution produced 24 witnesses out of 27 witnesses cited in the challan. At the completion of prosecution evidence the statement of the convict appellant under Section 342, Cr.P.C. was recorded on 17.10.2015, who again claimed to be innocent and recorded his statement under Section 340(2), Cr.P.C. At the conclusion of the trial, the learned District Criminal Court Rawalakot convicted accused Moeen Naseem under Section 302(b), A.P.C., and awarded him life imprisonment. The accused was also convicted under Section 13/20/65 Arms Act and was awarded 5 years rigorous imprisonment and fine Rs.10,000/-, in case of non-payment of fine, he shall have to undergo for further 6 months simple imprisonment. The accused was also ordered to pay Rs.10,00,000/- compensation to the legal heirs of the deceased under section 544, Cr.P.C. and in case of failure to pay compensation, he was sentenced to undergo for further 6 months simple imprisonment vide impugned judgment dated 28.01.2016. Appeal No.32/2016 has been filed by convict appellant for setting aside the sentences awarded to him by the Court below whereas, Appeal No.42/2016 has been filed by the complainant for awarding major punishment to the convict appellant. Mr. Muhammad Asif Kiani, learned counsel for the convict-appellant, argued that this is a case of blind murder and there is no eye-witness of the occurrence. He also submitted that the prosecution case is based on circumstantial evidence and for conviction of an accused on the basis of circumstantial evidence strong reasons are to be required. The learned Advocate contended that in the FIR the convict appellant was not nominated and he was involved mere on the ground that he had not attended the funeral ceremony of the deceased and also not contacted to the sons of deceased for condolence. The learned Advocate further contended that the recoveries of pistol with magazine and bullets, purse along with documents therein, Mobile and Rs.3450/- from different places are highly doubtful and it is unbelievable that an accused hides pistol in a gutter near the house of deceased but throws purse and SIM of the phone at some other place. The learned Advocate added that there is no independent witness of the recoveries despite the fact that prosecution witnesses Muhammad Arshid and Shabbir admitted in their statements that at the time of recoveries some other people were also present there, thus, the recoveries are highly doubtful and have been made in violation of section 103, Cr.P.C. The learned Advocate further submitted that the confessional statement allegedly made by the convict appellant is not reliable because the convict was brought before the Magistrate from police custody and on the confessional statement a foot Note, which is necessary requirement under Subsection (3) of Section 164, Cr.P.C. was not put by the Magistrate. The learned Advocate further added that confessional statement was also not presumable for the reason that the same was recorded in presence of the Police. The learned Advocate was of the view that on 08.04.2015 father of the appellant moved an application to the Superintendent Jail Rawalakot for issuance of copy of the application allegedly submitted by convict-appellant for recording his confessional statement, whereupon, the Assistant Superintendent District Jail Rawalakot reported that the accused was sent to judicial lockup on 13.01.2014 and during this period neither the appellant moved any application to produce him before the Magistrate nor the accused was presented before any Magistrate, therefore, the confessional statement Ex.PU is not reliable and cannot be taken into consideration for conviction of accused. The learned Advocate pressed into service that the confessional statement is not corroborated by any independent evidence thus, the conviction recorded by the Court below is liable to be recalled. He further pressed into service that 30 bore pistol has been recovered from the convict appellant whereas, as per opinion of the Doctor the deceased received injury with gun shot, which also makes the case of prosecution doubtful. The learned Advocate further stated that the Doctor who conducted postmortem did not appear as witness, thus, the medical evidence is also not supportive of the prosecution evidence. He further added that there was no enmity between the deceased and convict appellant who were close relatives therefore, it is unbelievable that an educated person who is also writer of a book, murders his real uncle only for Rs.9450/-. The learned Advocate stated that the FIR has been lodged with an ordinate delay and there is a big gape between the death of deceased and postmortem report which flawlessly omit the ring of chain of evidence. Hence, in such circumstances the conviction recorded by trial Court is not justified and the prosecution story becomes eminently doubtful especially, when the motive behind the occurrence has not been proved and even the prosecution failed to produce evidence on the motive behind the occurrence. The learned Advocate also argued that the convict appellant retracted his confessional statement in his testimony recorded under Section 340, Cr.P.C. but the Court below did not consider the statement of convict appellant. The learned Advocate in support of his submissions placed reliance on following cases:

1. Muhammad Baqa alias Baqir v. The State (2000 PCr.LJ 465).

2. Muhammad Israr and another v. The State (2002 PCr.LJ 1072).

3. Muhammad Afzal v. The State (1983 SCMR 1).

4. The State v. Abba Ali Shah alias Abba Umer and another (PLD 1988 Kar. 409)

5. Ghulam Rasool v. The State (1985 PCr.LJ 1097).

6. Waqar Zaheer v. The State (PLD 1991 SC 447).

7. Ali Akbar v. The State (2001 PCr.LJ 890).

8. Zahid Iqbal v. The State (2001 PCr.LJ 773).

9. Ali Asghar v. Farid Khan and another (1995 PCr.LJ 741).

10. Muhammad Hanif v. The State (1995 PCr.LJ 985).

11. Muhammad Khan v. The State (199$ PCr.LJ 1212) 1972 SCMR 950 Sardar Iftikhar Ahmed Khan, the learned Advocate appearing for complainant vehemently argued that the prosecution by producing cogent evidence proved the allegation levelled against the convict appellant that he murdered deceased Muhammad Ajmal Khan father of the complainant. The learned Advocate submitted that initially no one was nominated in the FIR and this fact is sufficient proof to believe that the complainant party had no enmity with the convict appellant. The learned Advocate submitted that the defense failed to establish enmity of prosecution witnesses with the convict appellant. The learned Advocate submitted that the recoveries in the case in hand are supported by the evidence of recovery witnesses out of whom Muhammad Ejaz PW-9 is independent witness. The learned Advocate further contended that confessional statement of the convict appellant is corroborated by the ocular evidence and the same has been recorded by the Magistrate in accordance with the provisions of Section 164, Cr.P.C. He added that the convict appellant was on physical remand before the Police till 30.12.2013 whereas, his confessional statement was recorded on 01.01.2014 and he was brought for recording his statement from judicial custody, therefore, the allegation of the learned counsel for the convict appellant that the appellant for recording his confessional statement was brought from police custody is against the record. The learned Advocate stated that report of Assistant Superintendent District Jail Rawalakot, available at backside of page 76 of the file of trial Court, was not produced during trial, hence, cannot be considered. The learned Advocate also submitted that the witnesses produced by the prosecution are also the close relatives of the convict appellant and no enmity between the convict and prosecution witnesses is established and even otherwise evidence of a witness cannot be disbelieved merely on the ground that he is a close relative of the complainant. The learned Advocate added that as the prosecution has proved its case beyond any shadow of doubt therefore, it was enjoined upon the trial court to award the convict appellant the punishment of death as Qisas and if the requirement of Hadood for conviction is not fulfilled, the accused can be awarded death sentence as Ta'zir. The learned Advocate in support of his submissions placed reliance on following case law:-

1. Muhammad Tahir Aziz v. The State and another (2009 SCR 71)

2. Rashid Hussain v. The State and another (2018 SCR 260).

3. Muhammad Khalid and another v. The State and another (2018 SCR 256).

4. The State v. Muhammad Abbasi and others (2015 PCr.LJ 1685).

5. Hamid Mehmood and another v. The State (2013 SCMR 1314).

6. Ahsaan Azeem and 2 others v. The State and 2 others (2014 SCR 735).

7. Shoukat Usman, Ex-Officer Grade-I UBL Muzaffarabad v. United Bank Limited through its President Head Office of Bank, Karachi and 6 others (PLJ 2011 Sh. C. (AJ&K) 1).

8. Muhammad Tariq Raza Attari v. The State (2015 YLR 1416).

9. Ayub and 2 others v. The State (1991 PCr.LJ 1535).

10. Wazarat Hussain v. Nazir Akhtar and another (2010 PCr.LJ 1567).

11. Zahoor Ahmed v. The State (2007 SCMR 1519).

12. Muhammad Azeem v. The State (2014 PCr.LJ 967).

13. Liaqat Ali and 2 others v. Raja Shahid Nawaz and 2 others (2006 SCR 365).

14. Nizam-u-Din and others v. Riaz and others (2010 SCMR 457).

15. Manjeet Singh v. The State (PLD 2006 SC 30).

16. AIR 1964 SC 358.

17. AIR 1941 Nag.

17. Sardar Javed Naz, learned AAG appearing for the State adopted the arguments advanced by the learned counsel for the complainant. We have heard the learned counsel for the parties and gone through the record of the case minutely as well as case law cited by the learned Advocates for the parties. At the very outset, it can be stated that there is no eye-witness of the occurrence and the prosecution case is based on circumstantial evidence i.e. recoveries affected from the convict appellant, confessional statement of the convict appellant as well as medical evidence. It is well-settled principle of law that if through circumstantial evidence the prosecution succeeds to prove the guilt of an accused, he can be convicted and even major punishment can be awarded if no link of chain is missing and all the circumstances lead to the guilt of accused, as has been held in case titled Muhammad Tasleem and another v. The State and another (2014 SCR 893), the Supreme Court of Azad Jammu and Kashmir laid down as under: "Although, law does not bar to convict an accused on the basis of circumstantial evidence and even a capital punishment can also be awarded, provided that in a case resting on a circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of accused. However, the circumstantial evidence can only form basis of conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypothesis except that of the guilt of accused and if no link in the chain found missing, the circumstantial evidence can be safely relied and conviction could be recorded on the basis of that." To examine as to whether the prosecution has proved the guilt of convict appellant and no link of the chain is missing, it is necessary to appreciate the prosecution evidence. As per prosecution case, on the day of occurrence convict appellant who was living at Chak Shahzad Rawalpindi came to Draik Bazar through Hi-ace No. LS 7820, went near the house of deceased Muhammad Ajmal Khan and at that time Abdul Qayyum resident of Hajira was cooking meal for deceased Muhammad Ajmal Khan, the accused sat under a tree and waited for departure of Abdul Qayyum and at about 07:30 p.m. after departure of Abdul Qayyum, the accused, who was armed with 30 bore pistol, entered into the house of deceased and with criminal intention fired with 30 bore pistol by targeting at the head of Muhammad Ajmal Khan who fell down. The accused also searched clothes of the deceased, almirah and bed and stolen away Rs.9540/-, Mobile phone with SIM and purse. Kabir Khan PW-10 deposed in his statement recorded on 05.05.2014 that he runs vehicle from Hussain Kot to Rawalpindi. On 06.12.2013 when he was coming from Rawalpindi to Rawalakot he stopped the vehicle in wait of two ladies who had booked two seats, accused was standing there, he boarded in the vehicle. At 05:00 pm the vehicle reached at Draik Bazar, accused present in the Court is the person who came with him from Rawalpindi on 06.12.2013. Muhammad Aziz Khan, PW-11, stated in his statement recorded on 09.06.2014 that on 06.12.2013 at 08:00, 08:15 pm the accused present in the Court came to his shop who told that he is resident of Draik and is son of Naseem. He asked about the timing of arrival of bus which goes to Lahore, in response, he told him that the bus will come at 08:40, 08:50 pm. In the meantime, the bus came there, the accused boarded in bus and went. The statements of these witnesses, who were also independent witnesses are sufficient to prove that on the day of occurrence accused came from Rawalpindi through vehicle which reached at Draik Bazar at 05:00 pm and went towards Rawalpindi through bus at around 8:30 pm. It is an admitted position that the convict appellant did not attend the funeral ceremony of deceased Muhammad Ajmal Khan who was his real uncle whereupon, he was arrested by the Police by finding him suspicious. As per prosecution case, after arrest on the pointation of convict appellant, 30 bore pistol, weapon of offence with two magazines and nine bullets were recovered from a gutter near the house of deceased. Muhammad Arshid, PW-7 deposed in his statement recorded on 30.10.2014 that pistol, Article P-9 along with 2 magazines and bullets were recovered on the pointation of accused. Article P-10 is a cloth in which pistol was covered. Sardar Muhammad Arif, PW-8, also stated in his statement recorded on 06.12.2014 that on the pointation of accused Moeen Nasim, 30 bore pistol, 2 magazines and 9 bullets were recovered from a gutter with the help of a sweeper. He also stated that Articles P-9 and P-10 are the parcels which were recovered on the pointation of accused. Muhammad Ejaz, PW-12 deposed in his statement recorded on 20.12.2014, that on 17.12.2013, he went upward from Draik with Police and the accused present in the Court was also with them. At 12:00 pm they reached there and on the pointation of accused he emptied gutter and found a bag from the gutter which was handed over to the police and when the bag was opened a pistol and dupatta were found from it. So in our considered view the prosecution has proved the recovery of weapon of offence on the pointation of accused and despite lengthy cross-examination, defence counsel failed to create a doubt in the recovery. The other recovery as per prosecution case affected on the pointation of accused is the purse of deceased Muhammad Ajmal Khan, which was made from near Draik Dam. Muhammad Shabbir, PW-9, deposed in his statement recorded on 10.11.2014 that he has a medical store in Draik Bazar. On 17.12.2013, he was coming back after leaving children in a school, he saw that people were gathered on a bridge over the Dam. He also stood there. The accused was also standing there and the Police was searching purse. From bushes they found purse which they brought up and gave in the hand of Inspector Ejaz who opened the purse wherein an identity card of Ajmal, 3/4 Photocopies, one medical card, and a jacket of U-phone SIM was found. Kamran Anjum PW-6, deposed in his statement recorded on 10.11.2014 that on 17.12.2013 at about 02:00 p.m. he reached near Draik Dam, the police was present there, accused Moeen Naseem told that on the day of occurrence he hid purse in the bushes. The police officials found purse from the bushes and handed over to investigation officer. These two witnesses fully supported the recovery of purse on the pointation of accused from near Draik Dam and the learned counsel for the accused failed to create any doubt in their statements. The third recovery which as per prosecution case was made on the pointation of accused is U-Phone SIM from road side at Chair which was in the use of deceased Muhammad Ajmal Khan. Muhammad Waheed, constable, PW-15, deposed in his statement recorded on 03.01.2015 that on 24.12.2013, in his presence accused Moeen Naseem disclosed that on 06.12.2013 he murdered deceased Muhammad Ajmal with 30 bore pistol and after search Rs.9540/- along with purse and one Mobile phone, U-Phone SIM taken away with him and he threw U Phone Sim at road side at Draik Chair by breaking it into two pieces and on the pointation of accused two pieces of U-Phone SIM were recovered from Draik Chair from roadside. Zeeshan Javed, constable, PW-16 deposed in his statement recorded on 07.02.2015 that on 24.12.2013 a U-Phone SIM was recovered on the pointation of accused Moeen Naseem from Draik Chair from road side. According to the prosecution's case Mobile 1208 and Rs. 3540/- which were stolen by the accused were also recovered on his pointation from the house of accused situated at Chata Bakhtawar Dhok Rajgan Chak Shahzad. Kamran Anjum, PW-6, stated in his statement that on 21.12.2013 Inspector Ejaz, called him to come to police station. On the said day, they along with accused Moeen Naseem went to Rawalpindi at the house of deceased situated at Chatha Bakhtawar Dhok Rajgan Chak Shahzad from where the accused got recovered Mobile Phone 1208 of Muhammad Ajmal from the tank of flush and Rs.3540/- from a Tachicase. From these statements of the prosecution witnesses the recoveries of SIM which was in the use of deceased Muhammad Ajmal Khan, stolen Mobile 1208 and Rs.3540/- is proved beyond any shadow of doubt. The other important piece of prosecution evidence is the confessional statement of accused, Moeen Naseem, recorded on 01.01.2014. A perusal of confessional statement of the accused Ex.PU, reveals that firstly, the Magistrate asked some questions from the accused to satisfy himself that the accused is aware of the fact that what kind of statement he is making and what is its impact and also to satisfy himself that the accused is making such statement voluntarily. In that statement the convict appellant narrated that on 07.12.2003 he went to the house of deceased Ajmal who was real uncle of the accused. When the accused entered into the house of deceased, he was going towards washroom and had ewer in his hand. Accused opened the door, entered into the house and locked the door. Accused was armed with an unlicensed 30 bore pistol which was purchased by him from Khaigala for Rs.10,000/-. He caught the hand of deceased Ajmal. As he was wearing veil, so deceased Ajmal could not identify him and when deceased Ajmal asked him "who are you", he fired at his head with 30 bore pistol, resultantly he fell down. Thereafter, he remained near dead body for 15 minutes, he fired at Ajmal at 07:30 pm and thereafter searched his pockets and got Rs.9540/-, Mobile Phone and purse. Thereafter he unveiled himself and covered pistol with a cloth of veil and put the same in a shopping bag and threw the bag in a gutter near his house. After that he went towards Draik, where he threw purse near Dam and on some distance he broke SIM and threw it at Chair and then went back to Rawalpindi. He also stated that after his arrest pistol (crime weapon), Rs.3540/- and mobile phone were recovered on his pointation. Tariq Mehmood, EAC, PW-24 who recorded statement of the accused under Section 164 Cr.P.C. also appeared as witness and deposed in his statement recorded on 02.04.2015 that on 01.01.2014 he was appointed as EAC Magistrate 1st Class Rawalakot. He received an application of Moeen Naseem forwarded by D.M. for recording his statement under Section 164, Cr.P.C. and recorded the statement of Moeen Naseem. Moeen Naseem came before him in police custody from judicial. He made him sit in his Courtroom, chat with him and satisfy himself in accordance with the provisions of section 164, Cr.P.C. He also stated that accused was not handcuffed when he recorded his statement. Statement Ex.PU under Section 164 is correct, his signature Ex.PU/1 and attestation Ex.PU/2 are also correct. The statement of the accused under Section 164, Cr.P.C. is fully corroborated by ocular evidence especially the recoveries effected by the Police on the pointation of accused as well as the statements of Kabir Khan, Muhammad Aziz Khan and Muhammad Qayyum. So far the medical evidence is concerned, as per provisional medical report probably cause of death is gun shot in skull of deceased. After postmortem some items of the dead body were sent for Forensic Report and after obtaining Forensic report the provisional report which was already submitted was declared final. As per report of Punjab Forensic Science Agency Lahore, Ex.PY, the recovered pistol on the pointation of accused was found in mechanical operating condition with safety features functioning properly and it was also opined that item C1, recovered bullet from the place of occurrence has been fired in item 1P pistol recovered on the pointation of accused. Doctor Kashif who conducted autopsy did not appear as witness on the ground that he had left the job however, Tahir Hussain Record Keeper, Combined Military Hospital Rawalakot appeared as witness and identified the signatures of Dr. Kashif on the postmortem report as per office record. It is settled law that non-examination of expert witness cannot press into service like ritualistic formula for discarding the prosecution case with a stroke of pen. An effort should be made at appreciating the worth of such evidence as has been adduced, if concerned doctor (expert witness) is not traceable/available then some other person from the same department, who knows the handwriting and signature of the doctor, who conducted autopsy, should be called for evidence as it is admissible in evidence under Qanun-e-Shahadat Order. The contention of the learned counsel for the convict appellant that the recoveries are doubtful on the ground that the recovery witnesses are close relatives of the deceased hence, are not reliable, has no substance. Firstly, the recovery witnesses are also the close relatives of accused Moeen Naseem, Secondly, the defense failed to establish any enmity between the witnesses and accused, and thirdly, a witness cannot be disbelieved merely on the ground that he is a close relative of complainant, as has been held in case titled Amal Sherin and another v. The State (PLD 2004 Supreme Court 371) by the Hon'ble Supreme Court of Pakistan as under:- "The trial Court was not justify to reject eye-witness account furnished by complainant Khan Amir P.W. and Hakim Gul P.W. merely on the ground of being related and interested particularly when appellants had not been able to establish on record that the above mentioned witnesses and nourished any grudge or ill-will against them and deposed with a specific motive. On this aspect, reliance can be made on the case Saeed Akhtar and others v. The State (2000 SCMR 383) wherein this Court has held that mere relationship of the witnesses with the accused would not detract from their veracity who had absolutely no motive of their own to involve the accused Conviction in a criminal case can be recorded even on the statement of the eye-witnesses alone without there being any corroboration provided their evidence inspires confidence." The next contention of the learned counsel for the convict appellant that while recording confessional statement Ex.PU, the requirements of section 164, Cr.P.C. have not been fulfilled because the Magistrate failed to put a note on the foot of statement, is without substance because as stated earlier the Magistrate initially put some questions to the accused to satisfy himself that the accused is making his statement voluntarily without any pressure and also informed him that this statement shall be exerted against him and also put a note at the foot of the statement as was required under Section 164(3), Cr.P.C. So far the contention of learned counsel for the convict appellant that statement of the accused Ex.PU cannot be believed because the same has been recorded in presence of Police, is concerned, is against the record because the Magistrate who recoded the statement clearly deposed in his Court statement that he made the accused sit in his Courtroom and after providing him friendly environment recorded his statement and at that time he was not handcuffed. He also informed him that he is not bound to get record this statement because it will be read against him. Under law factors necessary to be adopted while recording statement of an accused recorded under section 164, Cr.P.C. are as follows:--

1. The statement should be recorded and signed in the manner provided in section 164, Cr.P.C.;

2. A statutory warning that the accused is not bound to make confession should be given;

3. Magistrate should show his satisfaction that statement is being made voluntarily;

4. Magistrate should add memorandum at the foot of the confession;

5. Before commencing to record the confession Magistrate should put necessary questions required by the statutory provision;

6. Magistrate in his statement should adduce that accused was completely out of police influence. A perusal of Exh.PU reveals that all the above mentioned measures have been adopted by the Magistrate while recording confessional statement of the accused. So far argument of the learned counsel for the convict appellant that motive behind the occurrence is not proved, is concerned, it may be stated that it is amply proved from the evidence brought on record, discussed above, that accused came to the house of deceased for the purpose of theft and on resistance of deceased he killed deceased. Undoubtedly, in cases of circumstantial evidence motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence, hence, failure to prove motive is not fatal as a matter of law. So when facts are clear it becomes immaterial that motive has been proved or not. In our considered view, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor damages the case of prosecution. Even otherwise, mere absence of motive behind the occurrence cannot debar the Court from awarding major punishment to an accused, if his guilt is proved from the evidence/record. Our this view stands fortified from the judgment rendered in case titled Saeed Gul v. The State reported as (PLD 1992 Peshawar 40), wherein a Division Bench of Peshawar High Court at page 50 of the report observed as under: "Further the absence of motive will not deter the Courts to award the normal sentence of death as provided under section 302, P.P.C." The argument of the learned counsel for the convict appellant that the prosecution evidence is contradictory in nature and creates serious doubt in the prosecution story, is also without any force because there is no contradiction in the statements of the prosecution witnesses that the alleged recoveries were not affected on the pointation of the accused and discrepancies pointed out by the learned counsel for the convict appellant regarding time, date and manner of recoveries are minor in nature. It is well settled principle of law that minor discrepancies are always liable to be ignored because it is not expected by an illiterate-villager to remember and note correct time and date. Our this view is fortified from a judgment rendered in case titled Rehmat Ali v. Samundar Khan and another reported as (2009 SCR 252), wherein the Hon'ble Supreme Court of Azad Jammu and Kashmir please to hold as under: "Ordinarily an illiterate village person is not expected to tell the exact time of the events. The incident is of 27th of November, normally sun sets about 5 p.m. in the end of November. The witnesses have stated that the dead body was recovered around evening time, anyone of the witnesses has not stated the exact time and we should not expect from an illiterate person to tell the accurate timing of registration of FIR and recovery of dead body. It appears doubtful whether FIR was registered at 3 p.m. or some time later, but it does not destroy the fact that dead body was recovered from the accused house." The argument of the learned counsel for the convict appellant that the prosecution case is based on circumstantial evidence and there is no eye-witness of the occurrence, hence, the accused cannot be convicted by relying upon circumstantial evidence, has also no substance because from the circumstantial evidence the guilt of the accused is proved and merely on the ground that there is no eye-witness of the occurrence, the accused cannot be acquitted. In case titled Muhammad Latif Butt v. Shehtab and 4 others reported as (2009 SCR 432), the Hon'ble Supreme Court of Azad Jammu and Kashmir pleased to observe as under: "No doubt the conviction can be recorded on the basis of circumstantial evidence in the absence of direct evidence because a man can tell lie but circumstance never tell lie. The conviction can only be based on circumstantial evidence, if it excludes, all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of innocence of the accused." So far stand taken by the learned counsel for the convict-appellant that as per medical report the deceased received gun shot while the investigating agency recovered 30 bore pistol from the accused, which makes the whole story doubtful, is concerned, it may be stated that gun means a weapon incorporating a metal tube from which bullets, shells, or other missiles are propelled by explosive force, typically making a characteristic loud, sharp noise. The smallest of all firearms (guns) is handgun and there are two common types of handguns, revolvers and pistols. So the pistol also includes within the definition of gun and gunshot means any type of gun whether long gun or short gun (pistol, revolver). The observations made by the Court below that as there is no eye-witness of the occurrence and the prosecution case is based on circumstantial evidence, hence, major punishment cannot be granted to the accused, are illegal because if the guilt of the accused is proved from circumstantial evidence, the Court is competent to award major punishment to the accused as has been held in 2014 SCR 893, supra, however, on the ground that doctor who conducted autopsy did not appear as witness and previous non-conviction of the accused as well as manner of occurrence, instead of punishment of death as Qisas the life imprisonment recorded by the Court below through the impugned judgment is maintained. The upshot of the above discussion is that finding no substance both the appeals are hereby dismissed. A copy of the judgment shall be annexed with other relevant files. SA/2/HC(AJ&K) Appeals dismissed.