JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, SHEET IN THE PESHAWAR HIGH COURT, ... Appellant (s) :...

*M.Siraj Afridi P.S. D

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr.A. No.488-P/2013

Date of hearing: 28.10.2014

Date of announcement: 20.11.2014

Appellant (s) : Amjad Ali by Mr. Aziz ur Rehman,

Advocate.

Respondent(s) :Maqsood Ali by Mr. Muhammad Saleem Khan, Advocate and the State by Mian Arshad Jan AAG.

JUDGMENT ASSADULLAH KHAN CHAMMKANI, J.- Appellant

Amjad Ali, was tried by learned Judge Anti-Terrorism

Court, Mardan, for committing murder of Wilayat

Shah, Sadiq Ali, and Ghufran Ullah deceased, as well

as attempting at the lives of Maqsood Ali and Abidin,

causing them firearm injuries, and on conclusion of

trial, vide impugned judgment dated 12.09.2013, he

was convicted and sentenced in the following

manner:-

1. Under Section 302 (b)/34 PPC read with S.7 (a)

Anti Terrorism Act: To undergo life imprisonment and


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to pay Rs.3,00,000/- to LRs of the deceased, as

compensation in terms of section 544-A Cr.P.C.

2. Under Section324/34 PPC read with S.7 © of

the Anti Terrorism Act: To undergo 10 years R.I.

3. Under Section 337-F (iii) & (v)/34 PPC: To

undergo 03 years R.I. and to pay Rs.10,000/- to each

injured as “Daman”.

All the sentences have been directed to run

concurrently and benefit of S. 382-B Cr.P.C. has been

extended him.

2. Being discontented with his conviction and

sentence, Amjad Ali convict, has filed instant appeal,

seeking reversal of the impugned judgment, while the

State through Advocate-General Khyber Pakhtunkhwa,

Peshawar, has filed connected Criminal Appeal

No.591-P/2013, titled, “The State Vs Amjad Ali”

seeking enhancement of sentence of the convict from

life imprisonment to normal penalty of death and for

the same purpose complainant Maqsood Ali, has

preferred Cr.R. No.104-P/2013.


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3. As all the three, are the outcome of same

judgment of the learned Trial Court dated 12.09.2013,

therefore, we are going to dispose of these through

this common/single judgment.

4. Prosecution case as unfolded in First

Information Report is that, on 16.11.2007 at 0820

hours complainant Maqsood Ali (PW.11), reported to

Noor Waris Shah S.I. (PW.15), in injured condition, in

Civil hospital Kalu Khan, District Swabi, that on the

fateful day he alongwith his brothers Sadiq Ali and

Usman Akbar (PW.12), accompanied their father

Wilayat Shah to see him off at Peshawar, as he was

proceeding to Saudi Arabia to perform Hajj

(pilgrimage); that at 08.00 a.m, when they reached

Swabi road near “Kalu Khan main stop Intizargha

Swabi”, in the meanwhile, Amjad Ali (appellant-

convict herein) alongwith his brother Zulfiqar Ali

Bhutto (absconding co-accused), duly armed with

firearms, came there and opened fire at them with

intention to do away with them and resultantly, his


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father Wilayat Shah, brother Sadiq Ali and a passerby,

namely, Ghufran Ullah, were hit and died on the spot;

while he and one Abid Din a passerby, sustained

firearm injuries. After the occurrence, the accused

decamped from the crime spot. A land dispute is

stated to be motive behind the crime. In addition to

complainant, the incident is stated to have been

witnessed by PWs Usman Akbar, Imran and Farukh

Shehzad. Report of the complainant was reduced into

writing in the shape of murasila Exh.PA/1 by Noor

Waris Khan SI (PW.15), on the basis of which, FIR

Exh.PA bearing No.1401, dated 16.11.2007, was

registered under sections 302/324/34 PPC read with

S. 7 ATA, at Police Station Kalu Khan, District Swabi.

Noor Waris Khan SI PW.15, prepared injury sheets of

the injured and referred them for medical treatment.

Similarly, he after preparing injury sheets and inquest

reports of the deceased named above shifted their

dead bodies to mortuary for post-mortem

examination.


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5. Dr. Bakht Jamal (PW.13), examined injured

complainant Maqsood Ali on the same day at 8.35

a.m. and found a firearm grazing wound, measuring

1 x ¼ inches, at dorsum of his left hand. Similarly, on

examination of injured Abid Din, a firearm entrance

wound with corresponding exit on lateral side of right

thigh was observed.

On the same day at 9.00 a.m. PW.13,

conducted autopsy on the dead body of deceased

Ghufran Ullah and found the following injuries on his

person:-

i) Three firearm entrance wounds on the right

side neck, size ¼ x ¼ inches each.

ii) Firearm exit wound, size 2 x 2 inches on

the left side chin.

iii) Firearm exit wound on the left ear size ½ x

½ inches.

iv) Firearm exit wound on the left side

neck size ½ x ½ inches.

Opinion:

According to opinion of the Medical Officer,

death of the deceased was the result of injury to his

skull, brain and other vital organs. Probable time


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between injury and death has been given as

instantaneous while between death and post mortem

about an hour.

On post-mortem of deceased Sadiq Ali,

Medical Officer found the following injuries:-

i) Firearm entrance wound size ¼ x ¼

inches on the right side chest.

ii) Firearm exit wound size ½ x ½ inches on

the left side chest.

iii) Firearm entrance wound on the lateral side

of left upper arm size ¼ x ¼ inches.

iv) Firearm exit wound on the medical side

of the left upper arm size ½ x ½

inches.

v) Firearm gazing wound on the medical side

of right upper arm size 1 x ½ inches.

vi) Left humorous fractured.

Opinion:

As per opinion of the Doctor, the cause of

death of the deceased was injuries to his heart and

lungs. Probable time between injuries and death has

been observed as instantaneous while between death

and post-mortem within two hours.


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On the same day at 9.45 a.m. autopsy on

the dead body of Wilayat Shah was also conducted by

PW.13 and found the following injuries on his person:-

i) Firearm grazing wound size 3 x 2

inches on left corpus.

ii) Firearm entrance wound size ½ x ½

inches on right lateral side of chest.

iii) Firearm exit wound on right side back of

chest size ½ x ½ inches.

iv) Firearm entrance wound on the right

posterior side of chest size ¼ x ¼

inches.

v) Firearm exit wound on the right interior

side of the chest size ½ x ½ inches.

vi) Firearm entrance wound on the lateral side

of the right upper arm size ¼ x ¼

inches.

vii) Firearm exit wound on medial side of the

right upper arm size ½ x ½ inches.

viii) Firearm grazing wound on the epigastria

size 1 x ¼ inches.

The cause of death of the deceased has been given as

injuries to right lungs and blood vessels.

6. Muhammad Mumtaz Khan S.I. (PW.16),

after registration of the case, rushed to the spot and

prepared site plan Exh.PB on the pointation of

eyewitnesses. During spot inspection, he secured


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bloodstained clay, sand and grass as well as some

blood with the help of cotton, from the places of the

deceased, vide recovery memos Exh.PW.7/1 and

PW.7/2. Vide recovery memo Exh.PW.7/3 he took into

possession 6 crime empties of 7.62 bore Exh.P.2 and

broken glass of Suzuki No.M.1269-Peshawar. He also

took into possession the last worn bloodstained

garments of the three deceased vide recovery memos

Exh.PW.8/1 to Exh.PW.8/3. Suzuki mentioned above,

having bullet marks, was also taken into possession

vide recovery memo Exh.PW.16/2. Vide recovery

memos Exh.PW.16/4 and Exh.PW.16/5, he took into

possession bloodstained garments of two injured.

Since the accused were avoiding their lawful arrest,

therefore, he initiated proceedings under sections 204

and 87 Cr.P.C., sent the bloodstained articles to the

FSL, reports whereof are Exh.Pw.16/13 and

PW.16/14, recorded statements of the PWs under

section 161 Cr.P.C. and on completion of

investigation, handed over case file to Izhar Shah


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Khan SHO, who submitted challan against the accused

in terms of section 512 Cr.P.C. against the accused.

Both the accused were proceeded under section 512

Cr.P.C. and were declared as Proclaimed Offenders by

the learned Trial Court vide order dated 10.05.2010.

7. Accused/appellant Amjad Ali was arrested

on 28.01.2013. Supplementary challan was submitted

against him before the learned Trial Court, where he

was formally charge sheeted on 13.03.2013, to which

he pleaded not guilty and claimed Trial. To bring

home the guilt of appellant, prosecution examined as

many as sixteen witnesses. After closure of the

prosecution evidence, statement of the appellant was

recorded under section 342 Cr.P.C., wherein he

denied the prosecution allegations and professed his

innocence. He, however, neither wished to be

examined on oath under section 340 (2) Cr.P.C. nor

opted to produce evidence in defence. On conclusion

of trial, learned Trial Court, after hearing both the


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sides, convicted and sentenced the appellant, as

mentioned above.

8. Learned counsel for the appellant argued

that appellant is innocent and has been implicated

falsely in the case; that the mode and manner of

seeing off father of the complainant, who allegedly

was proceeding to Saudi Arabia for performance of

Hajj, being contrary with the common practice and

customs of society, does not appeal to a prudent

mind, as in our society Hajis are usually seen off by

their kith and kin in a respectable manner by hiring a

special vehicle for them; that no document about visit

of deceased Wilayat Shah to Saudi Arabia for

performance of Hajj has been produced during

investigation; that complainant and PW Usman Akbar,

being brothers inter-se, having land dispute with the

accused, and being closely related to two deceased,

are inimical and interested witnesses, therefore, their

testimony cannot be believed and relied upon; that

site plan contradicts the version of the complainant, as


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he has not mentioned about presence of any Suzuki

on the spot, but in the site plan a Suzuki has also

been shown; that no trail of blood has been observed

by the I.O. on the spot on the points of the two

deceased, who after receiving injuries, allegedly

covered some distance; that injury on palm of left

hand of the complainant is self-inflicted just to prove

his presence on the spot; that mere stamp of injuries

on the person of an injured witness would not be a

certificate of his credibility and truthfulness; that PW

Usman Akbar has failed to establish his presence on

the spot; that injured PW Abid Din and other PWs,

namely, Imran and Farukh Shehzad, being impartial

persons, have been abandoned by the prosecution for

no good reasons, which amounts to withholding of

best available evidence, hence, adverse inference

would be taken against the prosecution that had they

been examined in the court, they would not have

supported the prosecution case; that only six empties

have been recovered from the spot, which on one


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hand, do not commensurate with the number of

injuries on the persons of deceased and injured, while

on the other hand, these have not been sent to the

FSL, so as to determine the number of the assassins;

that nothing has been stated in his initial report by the

complainant qua shifting of the dead bodies and

injured to the hospital; that no recovery of the crime

weapon or anything incriminating has been effected

from direct or indirect possession of the appellant nor

on his discovery nor has he confessed his guilt before

any competent court of law. He vehemently

contended that testimony of complainant and PW

Usman Akbar, being contradictory with the site plan

as well as medical evidence and finding no

corroboration from other circumstances of the case,

has wrongly been believed and relied upon by the

learned Trial Court; that mere abscondence of an

accused would not be sufficient for recording

conviction in a capital charge; that prosecution has

miserably failed to bring home the guilt of the


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appellant through cogent and confidence inspiring

evidence beyond any shadow of doubt, therefore,

while extending benefit of doubt to the appellant, he

be acquitted of the charge.

9. Conversely, while controverting the

arguments of learned counsel for the appellant,

learned counsel for the complainant contended that

appellant along with his absconding co-accused is

directly charged for brutal murder of three deceased

and causing injuries on the persons of two injured in a

promptly lodged report, eliminating the possibility of

consultation, deliberation and substitution; that

incident is that of a broad daylight and parties being

real cousins inter-se, question of mistaken identity

does not arise; that presence of injured complainant

and PW Usman Akbar, is well established on the spot,

out of them complainant also sustained injury; that

testimony of eyewitness gets corroboration from

medical evidence, recoveries from the spot i.e. blood,

crime empties, Suzuki having bullet marks, and


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documents about Hajj of deceased Wilayat Shah

brought during cross-examination of the complainant

by the defence himself; that mentioning of each and

every detail in the FIR is not essential; that ocular

account, being straightforward and confidence

inspiring, cannot be discarded on the mere ground of

close relationship of the eyewitnesses with the

deceased; that it is quality of the evidence which is of

vital important in dispensing justice in criminal cases

and not the quantity, thus, statements of two

eyewitnesses would be sufficient for recording

conviction; that motive as alleged, has been squarely

proved; that injuries on the persons of the three

deceased speak volumes about brutality of the

accused; that dimension of injuries on the persons of

the deceased squarely proves the incident not to be

the job of a single person; that nothing has been

brought on record to prove the injury of the

complainant to be self inflicted; that the prosecution

has proved the guilt of the appellant through cogent,


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credible and confidence inspiring evidence upto the

hilt, and the learned Trial Court by appreciating the

evidence in its true perspective, has reached to a right

conclusion by holding the appellant guilty of the

offence. He however, added that when the guilt of the

appellant was squarely proved and there was no

mitigating circumstance, the learned Trial Court ought

to have awarded him normal penalty of death, as

provided for the offence. He sought dismissal of the

appeal and requested for enhancement of sentence of

the appellant/convict.

10. Learned AAG while supporting the

arguments of learned counsel for the complainant,

contended that keeping in view the gravity of the

offence, where three innocent human lives have been

done away with brutality and two have been injured,

the appellant deserves exemplary punishment i.e.

normal penalty of death, as there is no mitigating

circumstance to suggest any lenient view against him.

He sought dismissal of appeal of the appellant and


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requested for enhancement of sentence of the

appellant/convict by accepting State appeal.

11. We have given our anxious consideration to

the exhaustive arguments of learned counsel for the

parties, learned A.A.G. for the State and perused the

record with their valuable assistance.

12. On the face of record, this untoward

incident took place in early hours of November, 2007

at 8.00 a.m., on Swabi road near Kalu Khan Main Stop

(Intizargha), which has been reported by injured

complainant Maqsood Ali with promptitude at 8.20

a.m. i.e within 20 minutes. The promptly lodged

report, eliminates the possibility of deliberation,

consultation, concoction, and fabrication on the part

of complainant. Being a broad daylight incident, and

parties’ real cousins inter-se, question of any mistaken

identity does not arise. We do not see any

circumstance which may suggest substitution of the

accused because it does not appeal to a prudent mind

that complainant would let off the real assassins of his


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father and brother by implicating his innocent cousins

without any reason. Guidance in this regard may be

derived from the judgment of the apex court in case

titled, “Zar Bahadar Vs the State” (1978 SCMR

136), wherein it has been held “that witnesses

related to deceased would not normally allow real

murderer to escape by implicating an innocent person

and evidence of such witnesses requires only careful

scrutiny but not to be rejected on the score of close

relationship alone”. Complainant without any wastage

of time directly charged the appellant and absconding

co-accused (brother of the appellant) by furnishing

true account of the incident. Motive alleged by him

has been proved by him as well by Abdul Latif

(PW.13). PW Abdul Latif deposed that he had

purchased some land from deceased Wilayat Shah

vide deed Exh.PW.13/1, which land was claimed by

father of the accused; that differences developed

between deceased Wilayat Shah and father of the

accused on execution of the aforesaid deed. He


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further deposed that there were disputes between

fathers of both the parties on other properties. In light

of statement of Abdul Latif, we would not hesitate to

hold that land disputes prompted the accused to do

away with Wilayat Shah along with his sons from their

path.

13. Maqsood Ali injured complainant while

appearing as PW.11 furnished the ocular account of

the incident. In examination-in-chief, he reiterated the

same story as set forth by him in his report. He has

been subjected to taxing cross-examination by the

defence, but nothing favourable could be extracted

from him. He stuck to his stance and successfully

passed the test of cross-examination. His statement is

consistent with the testimony of PW Usman Akbar on

each and every material aspect of the incident.

Admittedly, complainant also sustained injury in the

incident; therefore, we entertain no amount of doubt

about his presence on the spot at the time of incident.

The argument of the learned counsel for the appellant


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that his injury is self inflected is unpersuasive,

because no shred of evidence whatsoever has been

led to prove injury of the complainant as such. Had it

been so, the medical officer would have observed

charring marks on his injury, but no such remarks has

been given by the Doctor neither in medico legal

report of injured complainant nor in his court

statement. As regard another limb of the arguments

of learned counsel for the appellant about non-

mentioning of Suzuki by complainant in his initial

report, suffice it to say that this omission of such a

trivial nature, would not damage the prosecution case,

because said Suzuki was neither the ownership of

complainant party nor in their occupation, rather was

being plied on the road by a driver who was alien to

them. Complainant alongwith his father Wilayat Shah

and brothers Sadiq Ali and Usman Akbar, was waiting

for conveyance on the crime spot to see off their

father at Peshawar Haji Camp, when all of a sudden

the accused emerged there and shot dead his father


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and brother Sadiq Ali and attempted at his life by

causing him injury, so complainant being in severe

shock of murder of his father and brother as well as

pain of his own injury, would not have given attention

to the vehicles plying on the road. Keeping in view the

peculiar facts and circumstances of this untoward

incident, non-mentioning of Suzuki in his report being

a minor omission, is ignorable, as in such critical

situation, no one could be expected to observe each

and every thing on the spot, not concerning him.

Except above, complainant has given each and every

detail of the incident.

14. Usman Akbar, son of Wilayat Shah and

brother of complainant as well as deceased Sadiq Ali

appeared as PW.12. He is also eyewitness of the

incident. He deposed that on the day of occurrence

his father was going for Hajj, so he, complainant and

Sadiq Ali, accompanied him to see him off at

Peshawar Haji Camp, and the moment they reached


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the crime spot at Swabi road, in the meantime at 8.00

a.m. appellant alongwith absconding co-accused

Zulfiqar alias Bhutto, emerged there duly armed with

Kalashnikovs and opened fire at them, as a result, his

father Wilayat Shah, brother Sadiq Ali and a passerby

Ghufran Ullah got hit and died on the spot, while

complainant Maqsood Ali and cleaner of Suzuki,

namely, Abid Din sustained injuries whereas he luckily

remained unscathed. This witness has also been

subjected to lengthy and comb searching cross-

examination by the defence, but nothing favourable to

defence could be extracted from him. Rather he

remained consistent with the complainant on each and

every aspect of the occurrence and corroborated his

testimony.

15. The story furnished by complainant has

been justified by the defence in cross-examination of

injured Maqsood Ali where while replying to a

question of defence, he deposed that though he had

not provided the documents of his father about


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performance of Hajj to the I.O. during investigation,

as those were misplaced at that time, he however

placed these documents on file i.e. a receipt of “Abu

Talha Hajj Services Pvt Limited Peshawar), in

the name of his deceased Wilayat Shah, containing

detail of payment of Rs.145000/-, CNIC number of the

deceased etc. He also produced a congratulation

receipt in the name of deceased Wilayat Shah about

his nomination to perform Hajj in December, 2007. In

the aforesaid receipt Flight No. PK.1211 and date of

departure of deceased Wilayat Shah, has been

mentioned as 17th November, 2007 at 0615 hours.

The occurrence has taken place on 16th November,

2007 at 08.00 a.m. i.e. a day prior to his departure

from Pakistan. There is another card on the file in the

name of Wilayat Shah deceased, issued by

Government of Pakistan Ministry of Religious Affairs,

Zakat & Usher, showing detail of vaccination of the

deceased before leaving for Saudi Arabia. The

credibility and authenticity of all these documents


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have not been questioned by the defence in cross-

examination of the complainant. These documents

squarely justify the story of the complainant that they

were accompanying their father who was going for

Hajj. As, usually people, nominated for Hajj, reach

“Haji Camp” Peshawar, a day prior to their

departure from Pakistan to Saudi Arabia, where they

are provided special training and necessary

instructions of the Hajj. In the instant case, as

manifest from Hajj documents of deceased Wilayat

Shah, he had to leave Pakistan on 17.11.20007, so he

along with his sons/eyewitnesses Maqsood Ali and

Usman Akbar as well as his deceased son Sadiq Ali,

was on the way to “Haji Camp Peshawar” from

village on 16.11.2007, as alleged by both the

eyewitnesses in their court statements, but met with

an unfortunate incident. The argument of the learned

counsel for the appellant that the mode and manner

of travelling of Wilayat Shah to Peshawar in routine

transport is against the normal practice and customs


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of the society is not tenable, as there are no hard and

fast rules, that each Haji should be seen off by their

kith and kin in a special vehicle. Each and every

person is the owner of his own will and it depends

upon him whether he leaves for Hajj in pomp and

show or in a simple way. We have observed that

many people do not like pomp and show while

proceeding to Hajj and prefer simple way, like the one

adopted by the complainant party in the instant case.

Proceeding of deceased Wilayat Shah to “Haji Camp”

on the day of incident, is well established. He being

father, presence of deceased Sadiq Ali, PWs Maqsood

Ali and Usman Akbar, his real sons to see him off at

Peshawar, was natural. In view of the above, we

entertain no amount of doubt, about presence of both

the eyewitnesses on the spot at the time of incident

with the deceased.

16. The ocular account is supported by

recovery of blood from the spot from the places of the

three deceased and positive Serologist Reports as well


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as recovery of crime empties of 7.62 bore, which

establish the crime spot to be the same as alleged by

the complainant. The unnatural death of the three

deceased and firearm injuries on their persons in light

of autopsy reports further corroborates the

prosecution version. In presence of direct ocular

evidence of unimpeachable character, mere non-

sending of the empties to the FSL, which otherwise is

the slackness of the I.O., would not be fatal to the

prosecution case being evidence of the second

degree. Admittedly, where the direct evidence is

confidence inspiring, trustworthy and wholly

believable, then there is no need of corroboratory

evidence i.e. evidence of the second degree, hence,

mere non-sending of the crime empties to the FSL per

se is no ground for rejecting such evidence and

throwing away the entire prosecution evidence, which

otherwise, we have found reliable and trustworthy.

17. As regard close relationship of the PWs, as

agitated by learned counsel for the appellant, suffice


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it to say that a trustworthy and confidence inspiring

testimony of a witness cannot be discarded on the

basis of his mere close relationship with the deceased

or complainant. As stated earlier, both the

eyewitnesses of the instant case have furnished

straightforward and confidence inspiring account of

the incident, corroborated by other strong

circumstances of the case, therefore, we have no

reason to discard their testimony on the basis of their

close relationship. We have observed that in the

present society no alien stands witness against the

offenders to earn enmity for himself and for his family

for the sake of others, and if the courts, discard the

testimony of witnesses on mere close relationship,

then there will be no evidence at all against the

culprits and they would easily escape from the grip of

the law, which exercise would increase the ratio of

crimes in the society. Such tendency though

important, has been taken note of in a number of

cases and condoned in view of the peculiar conditions


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prevailing in the country. In the case in hand, the

ocular account furnished by PWs Maqsood Ali and

Usman Akbar is worthy of credence, confidence

inspiring, credible and irrefutable which has rightly

been considered by the learned trial Court. The

defence has failed to bring an iota of evidence to

prove any ulterior motive of the eyewitnesses towards

the appellant/accused to falsely implicate him in the

case. The apex Court in Dildar Hussain’s case

(PLD 2004 Supreme Court 663) while dilating

upon the evidence of related witness, in Paragraph

No.11 of the Judgment observed as under:-

“Learned counsel appearing for

respondent No.3 contended that as far as

this witness is concerned, he is also

related to the complainant party as it has

been admitted by P.W. Dildar Hussain in

his cross-examination. We inquired from

him as to whether such question was put

to him his answer was in negative. It


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may be noted that firstly mere

relationship with the complainant party is

not sufficient to discard evidence unless it

is proved that he has ulterior motive to

involve the respondent No.3 in the

commission of the offence”.

18. In Muhammad Mansha’s case,

the Hon’ble Supreme Court defining interested

witness has held as under:-

“An interest witness is one who has a

motive for falsely implicating an

accused, is a partisan and is involved in

the matter against the accused.

Friendship or relationship with the

deceased will not be sufficient to

discredit a witness particularly when

there is no motive to falsely involve the

accused”.

The principles for accepting the testimony of even an

interested witness, are set out by the Hon’ble


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Supreme Court in Nazir’s case (PLD 1962 SC

269).

19. The arguments of the learned counsel for

the appellant that adverse inference is to be taken

against the prosecution because of non-production of

rest of the eyewitnesses named in the FIR, is without

any force, as in criminal cases, what is more essential

to be observed by the courts, is the veracity and

credibility of the witnesses and not their numbers and

relationship, because it is quality and not the quantity

of the evidence which matters. In the instant case

two eyewitnesses have been examined. By virtue of

Article 17 of the Qanun-e-Shahadat Order, 1984, in

financial matters, two male or one male and two

female witnesses, have been made the requirement of

law to prove the financial obligations. Whereas in all

other matters including criminal, there is no such

obligation, which clearly suggest that a single witness

is sufficient to prove a fact. When the law permits a

fact to be proved through the statement of a single


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witness, there is no reason or logic to call for more

witnesses than one. The Hon’ble Supreme Court in

Zar Badadar’s case (1978 SCMR 136), has

clarified the situation by holding the following:-

“We are also aware, and learned counsel

place great stress on it that according to

the two eyewitnesses, Mohammad Sher

was with them and that the other

persons in the hotel including its

proprietor had seen the murder. Mr.

Enayat Elahi, therefore, submitted that

the courts had erred in law in not

drawing an adverse inference against the

prosecution for not examining these

other witnesses. The submission is not

correct because the prosecution is not

required to examine every eyewitness of

a crime. The only question if whether the

evidence of the witnesses is sufficient to

prove the prosecution version of the


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crime and both the courts have held that

the evidence of PWs Akbar and Roidad

were sufficient to prove the petitioner’s

guilt as we indicated this finding is

supported by evidence, therefore,

nothing turns on the fact that the

prosecution did not examine every

possible eyewitness of the murder.

Additionally, as pointed out by the

courts, the ocular evidence receives

support from the evidence for the motive

of the crime and from the petitioner’s

abscondance because the abscondance

was for a long period”.

Same view has been reiterated by the apex court in

case titled, “Muhammad Ahmad and another Vs

the State and others”(1997 SCMR 89), that

“prosecution is not required to examine every

eyewitness of a crime”.


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20. In case titled, Muhammad Mansha Vs

the State” (2001 SCMR 199), the Ho’ble Supreme

Court while dilating upon the spirit of Article 17 of the

Qanun-e-Shahadat Order, 1984, held the following:-

“A bare perusal would reveal that the

language as employed in the said

Article 17 (1) (b) is free from any

ambiguity and no scholarly

interpretation is required. The

provisions as reproduced hereinabove

of the said Article would make it

abundant clear that particular number

of witnesses shall not be required for

the proof of any fact meaning thereby

that a fact can be proved only by a

single witness”.

In the Judgment Supra in Para No.7, the apex Court

held that conviction can be recorded on the testimony

of a single witness in the following words:-

“Even as the guilt of an accused person

may be proved by the testimony of a

single witness, the innocence of an

accused person may be established on

the testimony of a single witness, even


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though considerable number of

witnesses may be forthcoming to testify

to the truth of the case for the

prosecution. The Court is concerned

with the quality and not with the

quantity of the evidence necessary for

proving or disproving a fact. (Principles

and Digest of the law of Evidence by

M.Monir page 1458).

The Hon’ble Supreme Court in the judgment Supra

while referring to C.D. Field on the law of Evidence

(Page 4746) reproduced the following:-

“Thus evidence of a single witness is

sufficient to sustain and may legally be

made the sole basis for a conviction, the

relevant section 134 having enshrined

the well-recognized maxim that

‘evidence has to be weighed and not

counted’. Through the Legislature has

placed no jurisdictional limitation on the

power of a Judge to act on the sole

testimony of a single witness, even

though uncorroborated, the Judges

themselves have from time to time


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evolved some rules and guidelines of

circumspection as to when such evidence

can be or cannot be acted upon without

corroboration.(Pema Dukpa v State

Sikkim. 1981 Cr. LJ 276).

Taking guidance from the judgments of the apex court

(Supra), the learned Trial court was right in not

drawing adverse inference against the prosecution for

not examining rest of the eyewitnesses named in the

FIR, who even otherwise, were stated to have been

won over.

21. It is borne out from the record that soon

after the incident, appellant/accused went into hiding

and remained fugitive from law for considerable long

period, for which he has not furnished any plausible

explanation. Proceedings under sections 204 and 87

Cr.P.C. had been initiated and completed against him

and even trial under section 512 Cr.P.C. was

conducted wherein he was declared Proclaimed

Offender. The unexplained disappearance of the

appellant from the ordinary place of residence


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immediately after the occurrence knowingly that he

was being charged for the murder of the deceased

tantamounts to deliberate absconsion with guilty

mind, therefore, it would be another circumstance to

establish his culpability.

22. For the forgoing discussion, we have

reached to an irresistible conclusion that prosecution

has proved the guilt of the appellant up to the hilt

through cogent and confidence inspiring evidence and

the learned Trial Court has rightly held him guilty of

the offence. Resultantly, we while dismissing his

appeal, maintain his conviction recorded by the

learned trial Court.

23. Now the moot question before us would

be the quantum of the sentence to be awarded to the

appellant to meet the ends of justice. The impugned

judgment reveals that learned Trial Court has not

furnished any mitigating circumstance to warrant

lesser sentence of the appellant-convict under section


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302 (b) PPC, readwith section 7 (a) Anti-Terrorism Act,

and probably so because there was no mitigating

circumstance before the learned Trial Court. We have

also scrutinized the record/evidence from each and

every angle, but did not find any such circumstance to

persuade us for taking lenient view against the

convict. The evidence on record proves that

convict/respondent’s hands are coloured with the

blood of three deceased and two injured. It would be

immaterial that whether his fire or that of absconding

co-accused proved fatal, because we are confronted

with three dead bodies of the deceased and two

injured for which two accused, including the convict

are charged. Under section 34 PPC, when a criminal

act is done by several persons, in furtherance of the

common intention of all, each of such persons is liable

for that act in the same manner as if it was done by

him alone. Common intention implies acting in concert

in pursuance of pre-arranged plan which is to be

proved either from conduct or from circumstances or


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from incriminating facts. In the instant case the

conduct of the convict i.e. having a land dispute with

the complainant party, arming himself with deadly

weapon, reaching the spot along with his co-accused,

and then committing offence, clearly proves his

common intention in commission of the offence.

Common intention generally involves element of

common motive, pre-plan preparation and actual

pursuance to such plan, which in the case in hand, are

very much apparent on the part of the accused. The

learned counsel for the convict was specifically asked

to point out any mitigating circumstance which may

warrant lesser punishment but he failed. Three

innocent lives have been done to death while two

have been injured by attempting at their lives by the

appellant, thus, keeping in view his brutality, he

deserves no leniency. Finding no mitigating

circumstance, we by allowing Criminal Appeal

No.591-P/2013, titled, “The State Vs Amjad

Ali”, enhance the sentence of convict Amjad Ali from


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life imprisonment to the normal penalty of death on

three counts under section 302 (b)/34 PPC readwith

Section 7 (a) of Anti Terrorism Act. He be hanged by

the neck till he is dead. The conviction and sentences

of the convict under remaining offences as awarded by

the learned Trial Court shall remain intact.

24. The appellant has been tried by Special

Court/ Judge Anti Terrorism Court under Anti

Terrorism Act, and there is, no provisions of criminal

revision for enhancement of sentence under the Anti

Terrorism Act, therefore, Cr.R. No.104-P/2013

filed by the complainant, being not maintainable,

stands dismissed.

Note:

Copy of the judgment be provided to the convict through Superintendent concerned Jail by acknowledging receipt. Announced.

J U D G E

J U D G E


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JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, SHEET IN THE PESHAWAR HIGH COURT, ... Appellant (s) :...

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