2007 PLP 1651 (YLR)

IJAZ UL HASSAN KHAN, J.

Appellant Gul Daash son of Allah Bash, aged about 45/46 years, resident of Mauza 'Juwar' Tehsil Daggar, District Buner, was tried by learned Sessions Judge/Zilla Qazi Buner, on the allegations of having, on 25-9-2002 at about 13-10 hours, in the house of complainant Shah Gul Ambar, committed ''Qatl-i-Amd' of Mst. Shahida (22/23), wife of Muhammad Alam, by firing. At the conclusion of trial, vide judgment dated 2-4-2004, appellant was convicted under section 302(b), P.P.C. and sentenced to life imprisonment. Through the same judgment, the appellant was also. convicted under section 449, P.P.C. and sentenced to suffer five years' R.I. with the fine of Rs.50,000 or in default of payment of fine to undergo further S.I. for six months, besides giving him the benefit of section 382-B, Cr.P.C. Both the sentences were directed to run concurrently. However, the appellant was extended benefit of doubt and acquitted of the charge under section 13 of the West Pakistan Arms Ordinance, 1965.

2. The appellant has challenged his conviction and sentence before this Court through the present appeal under section 410 of the Criminal Procedure Code (Act V of 1898).

3. The crime in question is alleged to have taken place on the date, time and the scene of occurrence mentioned above, and the report (Exh.PA/1) about it was lodged the same day at 1400 hours at the spot by complainant Shah Gul Ambar, and it was recorded by A.S.-I. Ibrahim Shah (P.W.6) Incharge Police Post, Juwar.

4. The brief facts of the prosecution case are, that on the day of occurrence, complainant Shah Gul Ambar along with his relatives Umer Khitab and Ali Rehman, P.Ws. was present in the courtyard of his house and his daughter-in-law Mst. Shahida deceased was standing near the main gate of the. house, when in the meanwhile Gul Daash appellant, a co-villager of the complainant entered the courtyard of the house and started firing at Mst. Shahida, as a result of which she was hit and died there and then. Umer Khitab and Ali 'Rehman P.Ws., in addition to complainant, were stated to have witnessed the occurrence.

5. The motive for the incidence as alleged, was stated to be a quarrel between the children of the two families.

6. A.S.-I. Ibrahim Shah (P.W.6), recorded the report (Exh.PA/1) and sent the same to Police Station Pir Baba, for registration of case. He took over the dead body and prepared injury sheet (Exh.P.W.6/1) and inquest report (Exh.P.W.6/2) respectively of the deceased and dispatched the dead body to the hospital for post-mortem examination. He prepared site-plan (Exh.PB) at the pointation and instance of the complainant and eye-witnesses. During spot inspection he recovered two empties of 7.62 bore, vide recovery memo. Exh.P.W.4/1. He also .recovered blood-stained earth from the spot, vide recovery memo. Exh.4/2. He took into possession, last-worn clothes of the deceased i.e. shirt, 'shalwar' and 'dopatta', vide recovery memo. Exh.P.W.4/4. The accused was arrested on26-9-2002. During the course of investigation, a Klashinkov (country made) with live cartridges was produced by one Muhammad Hanif to the Investigating Officer. The Kalashnikov and the empties recovered from the spot and blood-stained clothes of the deceased were sent to the Chemical Examiner and Fire-arm Expert, Forensic Science Laboratory Peshawar for opinion. Reports, (Exh.P.W.6/5) and (Exh.P.W.6/6), were placed on record. After completion of investigation, the appellant was sent-up to face trial in Court.

7. To substantiate its version at the trial, the prosecution produced seven witnesses in all. Complainant Shah Gul Ambar (P.W.2), Umer Khitab (P.W.5) and Ali Rehman (P.W.7), furnished eye-witness account of the incident and implicated the appellant for the commission of offence. Dr. Said Shah (P.W.3), Medical Officer, DHQ Hospital, Daggar, on 25-9-2002, at 3-30 p.m., examined the dead body of Mst. Shahida deceased and noted the following injuries caused by fire arm:-- "

1. F.A. injury wound 1/3" x 1/3" on the right side of skull, with no exit wound.

2. F.A. injury wound on medial side of arm about 1/3" x 1/3" with exit wound on the right side of axilla." After closure of prosecution evidence, learned trial Court recorded the statement of the appellant under section 342, Cr.P.C. The appellant denied the allegations levelled against him by the prosecution and professed innocence. In answer to a question, "as to why the prosecution witnesses have deposed against .him", he stated:-- In answer to another question "as to what is your statement and why you have been charged", he gave the following reply:-- He neither appeared as his own witness on oath, as required under-section 340(2), Cr.P.C. nor produced any evidence in defence.

8. The learned trial Judge after hearing arguments of learned counsel for the parties and on overall assessment of the record, came to the conclusion that prosecution had been able to prove the guilt of the appellant beyond any reasonable doubt and hence convicted and sentenced the appellant as mentioned and detailed above. In reaching such conclusion, learned trial Court accepted the evidence furnished by the complainant and P.Ws. Umar Khitab and Ali Rehman corroborated by medical evidence, motive and recoveries.

9. Arguing the case on behalf of appellant, Barrister Zahurul Haq, argued that tale advanced by the complainant is totally unbelievable and destitute of the quality of attracting confidence; that the entire story was fabricated against the appellant by the police at the instance and behest of P.W. Muhammad Umer, Naib Nazim, Juwar; that the F.I.R. has been lodged at the spot with delay, which manifestly suggests that time was consumed in fabricating the case and bringing the false charge at the appellant's door; that in view of the alarming contradictions and discrepancies in the statements of eye-witnesses, their presence at the scene of occurrence was highly doubtful; that owing to close relationship of the witnesses with the deceased, their testimony should not have been accepted and relied upon; that medical evidence was in conflict with the ocular account and that motive set up by the prosecution has not been established. Concluding the arguments, learned counsel reiterated that from whatever angle the prosecution evidence is looked at, it does not inspire confidence and, as such, the charge against the appellant cannot be held to have been proved beyond shadow of reasonable doubt. To substantiate the contentions, reliance was placed on Anwar v. The State (1975 PCr.LJ 750) and Irshad Ahmad and others v. The State and others (PLD 1996 Supreme Court 138).

10. Whereas Mr. Muhammad Ayaz Khan, learned Additional Advocate-.General, assisted by Khawaja Muhammad Khan, Advocate for the complainant, opposed the arguments advanced by learned counsel for the appellant and submitted that the witnesses were material witnesses; that the matter was, reported to the police without any loss of time and that the prosecution evidence was consistent and was supported by the medical evidence as well as recovery of Kalashnikov and crime empties and thus the conclusion arrived at by the trial Court being well based and unexceptionable, does not warrant interference of this Court.

11. We have considered the abovementioned contentions of learned counsel for the parties, perused the available record with their able assistance and have also gone through the cited judgments. We have observed that the occurrence took place at 13-10 hours and the report was made at the spot at 14-00 hours, within fifty minutes of the occurrence, by complainant Shah Gul Ambar (P.W.2). The lodging of the report within fifty minutes excludes every possibility of consultation or deliberation for the purpose of selecting the accused. If the complainant had not been present with his daughter-in-law Mst. Shahida deceased and his procurement was to be managed, then the making of report by him at 14-00 hours was not possible.

12. It would be seen that case of the prosecution rests on the evidence of complainant Shah Gul Ambar (P.W.2) Umer Khitab (P.W.5) and Ali Rehman (P.W.7), who are designated as eye-witnesses of the occurrence. They have fully supported the prosecution version and charged the appellant for firing culminating in the murder of Mst. Shahida deceased.. We have critically analyzed the statements of these witnesses and we find that they have faithfully deposed about the incident. The evidence of eye-witnesses has gone unchallenged and learned defence counsel has failed to rebut the contention of the witnesses in their examination-in-chief. Through cross examination nothing has been brought on record to suggest that the witnesses have any motive for falsely implicating the appellant. To prove that the appellant was falsely implicated, he has neither examined himself on oath nor he produced any evidence in his defence, so as to disprove the charge and rebut the overwhelming evidence of prosecution. Ocular, straightforward and consistent testimony furnished by these witnesses was found to be credit worthy by the trial Court and we have no reason to take different view. There appears to be no inherent defect or material lacuna in the said evidence of the witnesses whose presence at the spot has been established beyond reasonable doubt. On the face of record, it has been proved to be independent and disinterested witnesses having no animus against the appellant. So far as the contention of learned counsel for the appellant is concerned, that eye-witnesses were close relatives of the deceased, therefore, their evidence should not be believed, has no substance in it for the reason that mere relationship of the witness is no ground for disbelieving him unless and until some enmity is established with the accused. In the instant case, even during the course of cross-examination, no enmity with the appellant was suggested to the witnesses and nothing like such is on the record, on the basis of which it could be said that these witnesses were inimical towards the appellant. We have no reason to suspect their words about the manner of incident, presence of eye-witnesses and the deceased at the place of occurrence and. sustaining of fire-arm injuries by deceased at the hand of the appellant. We find that none of the eye-witnesses could be termed as interested witnesses only for the reason that they are closely related to the deceased. There are, of course, some minor discrepancies coming on record during cross-examination of the witnesses, but the same being of minor character, can hardly be considered sufficient to discredit or discard their version. They have reasonably explained their presence at the place of occurrence and we see no reason to disbelieve them. Notwithstanding the fact that they were subjected to lengthy cross-examination but nothing could be shaken from their testimony. They remained consistent on all material particulars of the case and this Court sees the testimony to be worthy of credence. Needless to emphasize that relationship of the prosecution witnesses with the deceased or complainant is no criteria for discarding their evidence, if it is proved that they are natural witnesses and their statements appear convincing and truthful. Abrar Hussain v. The State (1992 SCMR 294), Muhammad Khalil v. The State ((sic) SCMR 249) and Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others (2001 PCr.LJ 524). .Federal Government Ministry of Defence v. Sepoy Liaqat Ali (2004 SCMR 1676), Amal Sherin and another v. The State through Advocate General, N.W.F.-P. (PLD 2004 SC 371), Wilayat Ali v. The State and another (2004 SCMR 477), Rashid Ahmad alias Kuku v. The State (2003 SCMR 497), Gul Raza v. The State and 4 others (PLD 2004 Peshawar 219) and Iftikhar alias Istikhar v. The State and another (PLD 2004 Peshawar .143).

13. It was also pressed into service by learned counsel for the appellant that the non-production of other inmates of the house, reflects adversely on the prosecution case. No doubt, it is true that non-production of a most natural and material witness of occurrence would strongly lead to an inference of suppression of material facts by the prosecution but it is equally true that it is the quality of evidence which matters and not the quantity of evidence. If the prosecution feels satisfied that its case can be proved by producing a single witness, then there is no compulsion for it to produce all the witnesses. In this regard I am fortified by the observation made in Riaz Ahmad v. The State (1986 SCMR 1460).

14. Learned counsel for the appellant next contended that motive set up in the F.I.R. has not been proved, which adversely affects the prosecution case. The submission does not carry weight. It has been mentioned in the F.I.R. as well as in the statement of complainant that a quarrel had ensued between the children of two families, on account of which they were nursing grudge against each other.

15. This is a settled principle of criminal law that absence or weakness of motive is not a valid ground to disbelieve the eye-witness account if otherwise it is found independent and confidence inspiring. Learned counsel for the appellant has not been able to convince us that either the ocular account was not truthful or appellant was substituted for unknown culprit due to the enmity. It may be seen that substitution is rare phenomenon whereas the enmity is considered double edged weapon but since the motive is not an 'essential ingredient for the crime, therefore, its absence or weakness may not reflect upon the direct evidence. In the present case, we find that the evidence of eye-witness seeking substantial corroboration, would sufficiently establish the charge of murder and house trespass against the appellant and learned counsel has not been able to point out anything material to suggest even a slight doubt vis-a-vis his guilt.

16. Regarding medical evidence, it may be observed that dead body of Mst. Shahida deceased was examined by Dr. Said Shah (P.W.3), Medical Officer, DHQ Hospital, Daggar and the deceased was found to have received two injuries on her person, caused by fire-arm. The complainant and other eye-witnesses have also accused the appellant for firing at the deceased, resulting in her death. The ocular account is in complete harmony with 'medical evidence.

17. The learned counsel for the appellant contended that there were some serious lapses in the process of investigation, which had vitiated the trial. However, he has not been able to point any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.

18. After hearing learned counsel for the parties in the light of the material on record, it can be said that the impugned judgment is neither arbitrary nor perverse. Nothing has been brought on record, which can indicate that there existed any enmity between the appellant and prosecution witnesses and he has been falsely implicated in the commission of offence on account of mala fide. Learned trial Court has discussed the evidence properly and learned counsel for the appellant has not been able to point out any illegality or irregularity as to how the impugned judgment is not sustainable. The appeal fails, which is hereby dismissed and impugned judgment of conviction is maintained and upheld. H.B.T./97/P Appeal dismissed.