HALEEM KHAN Versus State

ROZI KHAN BARRECH, J .---The appellant Haleem Khan son of Gul Amin, allegedly murdered Javed and Mst. Yasmeen and caused injuries to Mujahid Khan by means of cleaver/Toka at the house of the complainant Gul Amin (father of the appellant) situated at Essa Khan road Street No.2 Quetta within the precincts of Police Station Industrial Area Quetta at about 10:15 p.m. on 29.10.2016. For the commission of the said offence, the appellant was booked in case of FIR No. 107 of 2016, registered at the said police station on the night of the incident at 11:20 p.m. After a regular trial, the appellant was convicted vide judgment dated 15th February 2020 ('the impugned judgment') passed by learned Additional Sessions Judge-VI/MCTC-II, Quetta ('the trial Court') and sentenced as follows:

"22....... Therefore, the accused Haleem Khan son of Gul Amin is convicted offence under section 302(b), P.P.C. and sentenced to suffer for Life Imprisonment twice with direction to pay Rs.300,000/- (Rupees Three Lacs) each as compensation under section 544-A, Cr.P.C. to the heirs of the deceased Javed Khan and Mst. Yasmin. In default of payment of the total compensation amount of Rs. 600,000/- (Rupees six lacs) the accused Haleem Khan shall further to suffer simple imprisonment for a period of six (06) Months. The accused Haleem Khan also committed an offence under section 324, P.P.C. and also committed offence under section 337-A(ii) Shajjah-i-Mudihah to the victim Mujahid, therefore, the accused Haleem Khan is convicted offence under section 324, P.P.C. and sentenced to suffer for a period of seven (07) years rigorous imprisonment with direction to pay fine Rs.20,000/- (Rupees Twenty Thousands only) in default of fine he shall further to suffer S.I for two months. The accused Haleem Khan is further convicted offence under section 337-A(ii) and sentenced to suffer for a period of two (2) years rigorous imprisonment with direction to pay arsh which shall be 5% of diyat and the accused Haleem Khan shall remain in custody till the payment diyat amount. All the sentences awarded to the accused Haleem Khan shall run concurrently. The benefit of section 382-B, Cr.P.C. is also extended in favour of the accused from the date of his arrest i.e. 14.12.2016."

2. Aggrieved from the impugned judgment, the appellant Haleem Khan has assailed his conviction, and sentence through Criminal Appeal No.71 of 2020, while the son of the deceased Javed, namely Mujahid Khan (PW-2) filed Criminal Revision Petition No. 03 of 2020 for enhancement of conviction awarded to the appellant by the trial court. As the appeal and criminal revision petition are arising out one and the same judgment of the trial court, therefore, the same are being disposed of through this single judgment.

3. We have heard the learned counsel for the parties and have gone through the record with their able assistance.

4. In the case in hand, the FIR was lodged within an hour and five minutes of the occurrence and the accused/appellant was specifically nominated therein. The complainant Gul Amin son of Gul Jan, did not appear before the court as a prosecution witness. The trial court issued the summons as well as warrants of the complainant Gul Amin, but on 25.02.2019, IP Khalid Mehmood appeared before the court and got recorded his statement as CW-1 and stated that the complainant is not traceable. It is worthwhile to mention here that the complainant Gul Amin son of Gul Jan is the father of the deceased Javed and accused/appellant and father in law of the deceased Mst. Yasmeen. According to his report on the night of occurrence i.e. on 21.09.2016 he was present in his house. Suddenly at 10:15 p.m. due to hue and cry and weeping of his grandson Mujahid Khan (PW-2) he came out from his room. Mujahid was in injured condition, who disclosed to him that his uncle had killed his father Javed and mother Mst. Yasmeen and also caused injuries to him. Upon which he at once in order to save the minor daughter of the accused Haleem Khan and his son and injured Mujahid Khan took them to the home of their relative neighbors and when he reached to the drawing room of his house the dead bodies of his son Javed and daughter-in-law Mst. Yasmeen were lying in a pool of blood and blood stained cleaver/Toka was also lying in front of the latrine, and accused Haleem was decamped from the drawing room. The complainant Gul Amin is not an eye-witness of the occurrence. At the time of occurrence he was present in his room. He was informed by PW-2 Mujahid Khan about the occurrence, and only PW-2 Mujahid Khan is the eye-witness/injured witness of the incident. Here it is material to make it clear that for bringing the law into motion (lodgment of the FIR), it is never the requirement of law that the informant must be an eye-witness. The basic purpose of FIR is not meant to decide guilt or innocence but to activate the law enforcing agencies to immediately move for collection/ preservation of evidence. Reference may well be made to the case of Sikandar v. The State and another 2006 SCMR 1786 wherein it is observed that "the complainant certainly was not an eye-witness but this is not necessary that case must be registered on the basis of information to be given by a person having direct knowledge of occurrence rather law can be set at motion by any person. This may be pointed out that first information report is not substantive evidence and statement of first information, who is not an eye-witness cannot be treated at par to the direct evidence of an eye-witness but the same may be used as corroborative evidence."

5. It is stated earlier that the FIR is not a substantive piece of evidence, so we do not consider it fatal to the prosecution case that the person who transcribed the FIR was not examined, especially as it was exhibited in evidence. In this respect, reliance is placed on Muhammad Akram v. State (2006 SCMR 1567). Therefore, the contention so raised by learned counsel for the appellant with reference to the complaint as not being the eye-witness of the occurrence has no relevancy in deciding the legality of the direct account, brought on record through other eye-witnesses. The acceptance or otherwise of direct evidence would require independent determination where it is to be seen that whether evidence of such witness could be accepted or otherwise, which too is to do on settled principles of appreciation of evidence.

6. The prosecution produced P-2 Mujahid Khan. He is the only eye-witness/injured witness of the occurrence. He deposed before the trial court that on 21.09.2016, he was watching T.V in the room of his grandfather while his grandfather Gul Amin, children Bus Bibi, Rehan and Iqra Bibi were also present in the room. In the meanwhile, at 9:30 p.m. they heard some hue and cry. He first rushed towards the room of his father, who was sleeping, and then at 10:15 p.m. he went towards the drawing room where he saw the accused Haleem, who was hitting his mother with a cleaver/Toka and had caused her head injuries. As he tried to rescue his mother, the accused hit him with the cleaver/Toka and caused him injuries on the head and forehead. Then he went towards the courtyard, due to his hue and cry, is father came out and went towards the drawing room where the accused attacked him and caused him injuries at the neck. As the door of the drawing room opened, he saw the accused killing his mother and father. In the meanwhile, his grandfather went there and the accused fled away while throwing the cleaver in the drawing room. The said witness is an inmate of the house, and the accused/appellant is his uncle. Accused/appellant and the family of PW-2 were residing in the same house. The defense, despite lengthy cross-examination, could not shatter his trustworthy evidence. Not a single suggestion has been put to the said witness for sparing the real culprits and substituting him with the accused/appellant. We scanned the evidence of PW-2 but found that even no previous enmity or any ill will is attributed to the said witness. The defense has not challenged the time of the occurrence, the venue of occurrence and the manner of occurrence nor alleged any motive to rope in the accused in the case of capital punishment. The statement of PW-2 was promptly recorded and he remained in-line with his statement in the court throughout. PW-2 though, was a 'child witness', but the learned trial court took all legal precautions and fulfilled the formalities, and ensured that the PW is capable to understand the consequences and implication of his statement. Article 3 of Qanun-e-Shahadat Order, 1984 does not specify any age limit of a child, the law requires only intelligence and capability of understanding the questions and their rational answers. The evidence of a child witness cannot be discarded merely on account of his being of tender age. The statement of PW-2 is supporting the medical evidence, and no iota of doubt is in our mind that this witness either involved the appellant, who is his uncle, falsely or have exaggerated the story of occurrence. As discussed above, the trial court is quite competent to observe by putting certain questions to adjudge the capability of understanding of a child and then to record his evidence. The question put to PW-2 by the defense also depicts a clear picture that he was intelligent enough to meet the abrupt and technical questions put by the defense.

7. PW-2 is the sole eye-witness/injured witness in this case and has consistently adhered to the prosecution version word by word and fully supported the prosecution case giving all necessary details. He faithfully deposed what was witnessed by him. His version could not be impeached or shattered despite lengthy cross-examination. He described the role played by the accused in the commission of the offence and lent full strength to the prosecution story.

8. No doubt it is a case of solitary witness but the 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 son of the deceased is highly interested cannot be relied upon and 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.

9. 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 a further conviction can be based on the testimony of solitary eye-witness if it is confidence inspiring and rings true.

10. It may be observed that the medical evidence is in complete harmony with the ocular testimony of PW-2 Mujahid Khan, and no conflict could be pointed out to create a dent in the prosecution case. PW-8 Dr. Ali Mardan Mengal produced a medical certificate of the injured Mujahid Khan as Ex.P/8-A, medical certificate of the deceased Javed as Ex.P/8-B and medical certificate of the deceased Mst. Yasmeen as Ex.P/8-C according to which the deceased and the injured received injuries by means of sharp edged weapon.

11. The other corroborative piece of evidence with the ocular evidence is the blood stained earth, blood stained clothes of the deceased and injured, which was taken into possession through a recovery memo in the presence of the witnesses. The investigation officer also took the crime weapon, i.e. cleaver/Toka, into possession from the place of occurrence in the presence of the finesses and prepared parcels thereof. The investigation officer sent the parcel of the recovered blood stained earth, clothes of the deceased and the injured, as well as the blood stained crime weapon, i.e. blood stained cleaver/Toka, to the Forensic Science Laboratory and obtained a positive report of FSL, i.e. Ex.P/10-K. The said recoveries have been duly proved through recovery witnesses, and nothing adverse could be achieved despite cross-examination.

12. The next piece of evidence, i.e. the confessional statement of the accused recorded under section 164, Cr.P.C. before Muhammad Qasim Judicial Magistrate (PW-7) on 29.12.2016, which was retracted by the accused/appellant during the trial. The perusal of the evidence of PW-7 reveals that the appellant was produced before him on 29.12.2016, who got recorded his confessional statement, (Ex.P/7-B). The appellant, i.e. maker of the confessional statement was arrested on 14.12.2016, and his confessional statement was recorded on 29.12.2016, and there is a delay of fifteen days in recording his confessional statement, the effect of which has to be determined keeping in view the facts and circumstances of the case. Such delay has not been plausibly explained by the prosecution, which has highly injured its credibility, and the same cannot be accepted as confidence inspiring against the appellant. There are other important attending circumstances that cannot be ignored. A perusal of the confessional statement Ex.P/7-B reveals that its maker, while replying to question No.6 stated that he was tortured by the police when he stated that . Torture by the police even for one day casts serious doubt about the voluntariness of the confession. Therefore, this piece of evidence is of no help to the prosecution case. Even if the confessional statement of the accused is excluded from consideration, it has been observed that direct evidence in the form of ocular account furnished by PW-2 eye-witness/ injured witness is inspiring confidence, which is supported by the medical evidence.

13. We have no hesitation to hold that the prosecution has been successful to prove its case against the appellant Haleem Khan beyond reasonable doubt and the conviction and sentence recorded against the appellant is based on correct appreciation of evidence, which does not call for any interference, therefore, the impugned judgment passed by the trial court recording conviction and sentence against the appellant Haleem Khan is thus maintained in result whereof the Criminal Appeal No. 71 of 2020 is dismissed accordingly.

14. Adverting to Criminal Revision Petition No.03 of 2020, 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 his wisdom, declined to award a 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.

JK/103/Bal. Appeal dismissed.