2016 PLP 2739 (YLR)

MUHAMMAD YOUNIS THAHEEM, J.- This criminal appeal is directed against the judgment dated 09.10.2012 passed by learned Additional Sessions Judge-I, Bannu, whereby the appellant Nazar Muhammad charged in case FIR No.218 dated 04.08.2010 under section 302, P.P.C. 13 AO Police Station Mandan has been convicted and sentenced as under:-- i) Under section 302(b), P.P.C. sentenced to death with compensation under section 544-A, Cr.P.C. Rs.100000/- payable to the legal heirs of deceased Qamar Zaman and in default thereof further six months' S.I. ii. Under section 302(b), P.P.C. for Qatl-i-Amd of Wahid Khan and Mst. Bus Feroza, sentenced to life imprisonment on two counts with compensation under section 544-A, Cr.P.C. of Rs.100000/- to the legal heirs of each of the two deceased, or in default thereof the appellant shall further undergo for six months' SI (on two counts). iii. Benefit of section 382-B, Cr.P.C. has been also extended to the appellant. Murder reference has also been put up before us for confirmation.

2. The story of prosecution as disclosed in the FIR Ex:PW4/1 may briefly be narrated as follows:-- On 04.08.2010 at 18.20 hours Usman Khan (PW-7), the complainant along with dead-bodies of his father Qamar Zaman and two passers-by man and woman at mettaled road leading to Khansuba Maita Khel, Bannu and made a report to Imam Hassan SHO, Police Station Mandan, (PW-9) to the effect that:

3. After scribing the report/murasila of the complainant Ex:PW7/1, it was read over and explained to him, who admitted to be correct and signed the same as token of its correctness, whereafter, it was sent to the Police Station through constable Baseerullah No.900, where on the basis of which FIR No. 218 (Ex: PW4/1) was registered on 04.08.2010 against the accused/appellant under sections 302, P.P.C./13AO; at Police Station Mandan. Imam Hussain SHO prepared the injury sheets and inquests reports in respect of all the three deceased and thereafter referred the dead-bodies for post mortem examina-tion under the escort of Siffatullah FC 2127.

4. The occurrence was investigated by Muzamal Khan SHO, who prepared site plan (Ex:PW 10/1) at the instance of complainant Usman Khan, from the spot took into possession blood stained earth from the places of all the deceased, vide recovery memo Ex:PW7/3. He also took into possession five empties of 7.62 bore near the place of accused Nazar Muhammad vide recovery Memo Ex:PW7/4. Took into possession Kalashnikov a/w fit magazine containing five live rounds from SHO Imam Hussain, which was recovered from accused/appellant, vide recovery memo Ex:PW7/2. On the pointation of Imam Hussain SHO site sketch was prepared, wherefrom accused was arrested and Kalashnikov was recovered. He received injury sheets, inquest report and PM reports and placed on file. He recorded the statements of PWs and on completion of investigation submitted two separate complete challans under section 302, P.P.C. and 13 AO against the accused/ appellant, but in same FIR.

5. The trial commenced, in the instant case charge was framed, to which accused did not plead guilty and claimed trial. The prosecution in order to prove guilt of accused in case under section

302. P.P.C, examined ten PWs.

6. After closure of the prosecution evidence, statements of accused was recorded under section 342, Cr.P.C., wherein he professed his innocence and did not opt to produce evidence in his defence, nor wished to be examined on oath, as required under section 340(2), Cr.P.C. After hearing the prosecutor and defence, learned trial court convicted the accused/ appellant, as mentioned above.

7. Learned counsel for appellant argued that the accused/appellant is innocent and has falsely been charged on mere suspicion. He further argued that presence of the complainant at the spot was not established, as the other alleged eye-witness had abandoned by prosecution. He added that there were material contradictions in the statements of PWs, which suggested that the occurrence had not taken place in the mode and manner as alleged by the prosecution. He lastly argued that the prosecution miserably failed to establish the charge against the accused, hence, he deserve to be acquitted.

8. On the other hand, learned Addl. A.G. assisted by learned counsel for complainant vehemently opposed the arguments advanced by learned counsel for appellant by arguing that the appellant is directly charged in promptly lodged report for qatl-i-amd of father of complainant as well as two passersby. They added that the accused/ appellant was arrested just after the occurrence equipped with Kalashnikov, while fleeing away from the spot by the SHO Imam Hussain. They further argued that FSL report of blood stained earth recovered from places from where all three deceased were shown lying and the expert report in respect to the crime weapons as well as recovered empties from the place of occurrence were fired from the . offence. They lastly argued that ocular testimony of the prosecution and the medical evidence is in line and the motive of the occurrence is also established by the prosecution, hence, the case against the accused/appellant is fully established, due to which the learned trial court rightly awarded the sentence of death, hence the instant appeal is liable to be dismissed.

9. We have heard arguments of learned counsel for the parties and gone through the record with their valuable assistance.

10. No doubt that one of the eye-witness, namely Mst. Noor Gohar Bibi, wife of deceased was abandoned but it shall not affect either the intrinsic value of evidence or be treated as fatal to the prosecution case. In case of "Muhammad Akhtar Ali v. The State 2000 SCMR 727 the Apex court has held:-- "Prosecution is not bound to produce all eye-witnesses if it considers that the guilt could be established by examining some of eye-witnesses." Article 17 of Qanun-e-Shahadat Order, 1984 prescribed competency and number of witnesses which reads as:--

17. Competence and number of witnesses.

(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remained the other, if necessary and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant." In case of "Mazhar Ali v. The State" (2005 SCMR 523) Apex court had held:- "It is prerogative of the prosecution to examine their witnesses who are considered necessary for its case."

11. It is established principle of law that it would be not quantity but the quality of evidence which shall be judged. The evidence of a number of witnesses shall not stamp the genuineness of an occurrence nor evidence of single witness in criminal case be discarded only on the ground that it was not corroborated by other witness.

12. The other contention of the learned counsel for appellant that ocular testimony was inconsistent with the medical evidence, is misconceived. Dr. Khalid Jan (PW-1) has deposed that deceased was hit on the head from back side while the statement of the complainant (PW-7) and the site plan fully corroborate it. Even then in such circumstances, while the witness present on the spot in such horrible and terrible situation could not be expected to narrate the occurrence in the manner like video film in his evidence because fluctuation or slight variation in the deposition of an eye-witness may do occur after lapse of time, which is natural conduct of human being. In case of "Abdur Rauf v. The State" (2003 SCMR 522), the apex court has held as:-- "We may observe that the minor discrepancies in the medical evidence relating to the seat of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse effect on the prosecution case."

13. Likewise minor discrepancies even if occurred in the statements of any prosecution witness which would not effect the intrinsic value of evidence shall not be given any worth. In case of "Muhammad Ilyas and others v. The State" (2011 SCMR 460), the apex Court is held as: "There are certain contradictions but they are not grave in nature and can be ignored safely as minor contradictions do creep in with passage of time ..... It is well settled by now that if there is forthright and convincing eye account that will be preferred as compared to that of medical evidence."

14. The contention of the learned counsel for appellant that the testimony of sole eye-witness should not be relied upon being highly interested and close relative, real son of deceased is also not tenable. No doubt that evidence of interested and inimical witness shall be analyzed with great care and caution but it is not an inflexible rule of criminal dispensation of justice. Mere relationship or enmity of the witness shall not always be enough to declare him as an interested witness in order to turn him as untruthful witness. In light of attending circumstances of this case, we come to the conclusion that testimony of sole witness is reliable, truthful and such evidence could be believed without any further corroboration, which is not necessary in each and every case. In case of "Allah Bakhsh v. The State" 2002 SCMR 1260 the apex court is held as:-- "We have thoroughly examined the statements of the two eye-witnesses and do not find any material to discard their testimony, which was rightly believed both by Trial Court, and High Court. Their presence at the scene of offence was proved beyond any shadow of doubts. They had no reason to falsely implicate the petitioner. Their testimony was corroborated by medical evidence. There was no question of mistaken identity. PWs know the petitioner very well even before the occurrence. It was the petitioner and the petitioner alone, who killed the deceased. "

15. The other contention of learned counsel for appellant that real culprits were substituted for appellant is not appealable to a prudent mind as it is by now settled principle of law that substitution is a rare phenomenon in a case where a single accused was charged by a close relative, it is not attractive to a reasonable mind that how a real son of deceased would get free the real culprits and charge an innocent person without showing any false motive. In this respect the Hon'ble Supreme Court in case titled "Muhammad Akhtar v. The State" (2007-SCMR 876) is held as:-- "It is worthwhile to mention here at this juncture that the petitioner is neighbor of the complainant and there is no reason whatsoever for the substitution of real culprit with that of petitioner which otherwise is a rare phenomenaon."

16. There is no any evidence, which could otherwise be taken into consideration to the effect that the eye-witness was inimical or that he had concocted a false case, for any similar motive involve an innocent person in murder of his real father.

17. There is no single circumstance which could be pointed out by the learned counsel for the appellant that the prosecution has not proved his case against the appellant, hence, guilt of accused/appellant has been proved beyond any shadow of doubt.

18. In case in hand, three persons were killed however, the legal heirs of the other two deceased had not contested the case and as per version of learned counsel for the appellant that a compromise had been effected with legal heirs of other deceased, but this fact had not so been brought on the record before the trial court as well as before us, rather had produced a written pardon-ship deed. However, no formal compromise by the legal heirs with the appellant was brought on the record to acquit the appellant on the charges of murder of two passersby before this Court or before the trial Court, but keeping in view the gentlemen statement of the learned counsel of the appellant and not taking interest of legal heirs of the two other deceased (passers by) at least makes the case of the appellant a case of mitigating circumstance for reduction of sentence. So keeping in view the reason given herein above, we are of the considered view to up hold conviction of the appellant, however, convert the sentence of death to life imprisonment under section 302(b), P.P.C. to surfer Rigorous imprisonment for life on three counts for offence of Qatl-i-amd for each of deceased mentioned above. The accused is also to pay Rs.10,00,000/- (Rupees ten Lacs) as compensation under section 544A, Cr.P.C. to be paid to the legal heirs of each deceased mentioned herein above or in default of fine imposed herein above to further undergo for period of two years' SI (on three counts). However, the benefit of Section 382-B, Cr.P.C. is extended to the accused/convict. All the sentences awarded to the accused shall run concurrently. Murder Reference is answered in negative. (The Additional Registrar of this court is directed to send the copy of this judgment to the legal heirs of each deceased). SL/65/P Sentence reduced.