' SHAHZAD AKBAR KHAN, J.--- Nazeer Muhammad appellant alongwith Faqir Muhammad and Ejaz was tried by the learned Additional Sessions Judge-I, Mansehra for the offence under section 302/34, P.P.C. Faqir Muhammad and Ejaz were acquitted while the appellant was found guilty for the murder of deceased Abdul Manan. He. Was accordingly convicted and sentenced to imprisonment for life and a fine of Rs,1,00,000 or to suffer one year S.I. For default in payment of fine.
50% of the fine was to be paid to the L.Rs, of the deceased as compensation in terms of section 544, Cr.P.C. This appeal is meant to call in question the conviction and sentence of Nazeer Muhammad appellant. The complainant Mehmood has also filed Cr. R. No,27/2003 seeking enhancement of punishment from life to death. By way of this common judgment, we propose to dispose of both the appeal as well as the criminal revision.
2. On 19-11-2000 the complainant Mehmood Khan while carrying his injured brother Namely Abdul Manan in a wagon met the police party on his way. He made a report to A.S.-I. Jehanzeb Khan to the effect, that on that day at 10 a.m. He alongwith his brother Abdul Manan and Sain Muhammad were present in their landed property situated in Nalian in the area of Khaliala. In the meanwhile Faqir Muhammad, Muhammad Nazeer sons of Arsallah Khan armed with .30 bore pistols and Ejaz son of Faqir Muhammad equipped with .12 bore shotgun who are residents of Hiran Khola came there and said to his brother Abdul Manan as to why he had permitted "Gujjars" in their land. Faqir Muhammad shouted to kill Abdul Manan by firing at him. Resultantly, Muhammad Nazeer fired with .30 bore pistol while Ejaz fired with .12 bore shotgun with intention to kill Abdul Manan. With the fire shot of Muhammad Nazeer, Abdul Manan was hit on his left side neck and back. He was seriously injured and fell on the ground. The fire shot of Ejaz, however, went abortive. All the accused after the commission of the offence sped away from the spot. He, therefore, put his brother in a wagon and were proceeding to the police post for report when the police met him en route and he recorded his report. The complainant also stated that his brother could not make a report because of shock.
The motive that triggered the occurrence was disclosed to be the land dispute. The occurrence was statedly witnessed by his brother Sain Muhammad as well. After the recording of Murasila Jehanzeb Khan A.S.-I. Prepared the injury sheet of Abdul Manan and he was set to Civil Hospital Mansehra for treatment. The injury sheet was Exh.P.W.12/2. The Murasila culminated into the registration of the case vide F.I.R. No,221 in Police Station Phulra. The I.O. Visited the spot, prepared the site plan Exh.P.W.14/3 and secured blood-stained earth from the place of occurrence through recovery memo. Exh.P.W.12/4 duly attested by the marginal witnesses. The same was sealed into a parcel. He also secured one empty of .30 bore from the spot vide recovery memo. Exh.P.W.M/5. He also took into possession the bloodstained garments comprising shirt and Banyan of the deceased Abdul Manan that were produced to him by constable Muhammad Aqeel. The garments of the deceased alongwith the blood-stained earth were sdnt to the laboratory through his application Exh.P.W.14/6. He also recorded the statements of the witnesses under section 161, Cr.P.C. Since the accused were absconding, therefore, proceedings under sections 87/88 and 204, Cr.P.C. Were carried out against them. He subsequently arrested the accused Faqir Muhammad and Muhammad Ejaz. On the completion of investigation complete challan was put in Court and the accused were put to trial. During the trial proceedings apart from the formal witnesses the prosecution examined Dr. Shamsul Haq Klehra who had conducted the autopsy on the dead body of Abdul Manan on 19-11- 2000. During the P.M. Examination he observed one entry wound at front of the neck on left side about 1 c.m. Diameter and its exit at posterior aspect of the chest on left side near to the inner border of scapula sizing 1-1/2 c.m. In diameter. Internally he found the walls, pleurae, left lung and blood vessels injured. The cervical vertebrae was also found fractured.
Membranes of the spinal cord was also found injured. In his opinion the death occurred because of the injury to the major vessels in neck and injury to cervical spine. According to his opinion the probable time between injury and death was within six hours and between death and P.M.
Examination 1 to 4 hours. He accepted the correctness of his P.M. Examination and his signature thereon which were Exh.P.W.2/1. Habibullah F.C. No,315 appeared as P.W.8. He deposed about the execution of warrant under section 204, Cr.P.C. Against the appellant and his co-accused.
According to him, the accused were intentionally avoiding their arrest. He also stated that proclamation under section 87, Cr.P.C. Was also carried out by him. Mehmood Khan complainant was examined as P.W.11. He recorded his statement reaffirming the contents of the F.I.R. The role of effective firing with .30 bore pistol on Abdul Manan was attributed to the appellant. He accepted the correctness of his' report Exh.P.W.9/1 and admitted that it was read over to him and after admitting its correctness he signed the same. The motive of dispute over the landed property was reiterated. Dr. Nazeer appeared and recorded his statement as. P.W.13. He had examined Abdul Manan in Civil Hospital, Mansehra when he was in injured condition. This witness also had found a fire-arm entrance wound in front of left side of neck 1 c.m. x 1 c.m.. In size and an exit wound on the back of the left side of the chest. The duration of the injuries was given within 3 to 4 hours. He admitted the correctness of his report. Exh.P.W.2/1. Jehanzeb Khan who had investigated the case appeared as P.W.14. He reaffirmed the entire investigational exercise that has been detailfully incorporated above in this para. At the end of the trial the statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations levelled against him by the prosecution. In answer to the question that was put to him with regard to his abscondence the appellant gave the following answer:-- "Ans. During the days of occurrence I was posted as H.M.S. In P.S. Jalkot District Kohistan. Actually on 13-11-2000 I got leave from my service in order to see my brother who was in ailing condition at Karachi, co-accused in the present case. On 14-11-2000 I left for Karachi and remained there for sufficient period and when I came to know about my involvement in the case, thereafter I came and got pre-arrest bail which was subsequently cancelled. The abscondence was not intentional on my part."
' He, however, neither opted for the recording of his statement in terms of section 340(2), Cr.P.C. Nor did he produce any defence.
3. The learned counsel appearing on behalf of the appellant has argued that virtually this was a blind murder and the presence of P.W. Mehmood was procured by the police subsequently in order to fabricate evidence against the appellant. He contended that the appellant was involved in this matter after deliberation and consultation. Intensifying his argument on the point of non-presence of the complainant at the time of occurrence he urged that the testimony of this witness is not Conformable with the medical report. He made reference to the statement of the doctor who said, when he accepted the correctness of suggestion, that the injuries on the person of the deceased shows that he was fired at by the assailant at from the higher place. The learned counsel with reference to the statement of the I.O. Stated that the place of occurrence is in "same level". He further argued that the occurrence took place at 10 a.m. And according to the normal course of the human nature before the time of occurrence the deceased was expected to have answered the call of the nature and if he had responded to the call of the nature then the stomach of the deceased would have been found empty and there was no possibility of the existence of digested food in the stomach and in the intestines. He further argued that the deceased had other enmities in the area and the possibility could not be ruled out that he was killed by his other enemies. He also submitted that when the occurrence took place at 10 a.m. Then the shifting of Abdul Manan to the Civil Hospital, Mansehra by 11-35 a.m. Was not possible. On evaluating the above circumstances the learned counsel argued his formulated view that the occurrence appears to have taken place before 10 a.m. And the prosecution has not given the correct time. It was addedly urged that the motive alleged by the prosecution was not proved. While dealing with the factum of abscondence he contended that the appellant had gone to Karachi after obtaining leave from his department on 13-11-2000 and remained there to attend to his ailing brother. He further contended that even if the abscondence is taken into consideration it cannot be made basis of conviction when other evidence is lacking in the case. He also assailed the prosecution case on the ground that Sain Muhammad a witness of the F.I.R. And the real brother of the deceased was not produced as a witness and his non-production would give way to the inference that he would have not supported the prosecution case if he were examined.
4. On the other hand, the learned counsel appearing on behalf of the complainant has argued that the appellant is charged for the offence in a timely lodged F.I.R. The evidence of Mehmood Khan which rings true and inspires confidence is sufficient to establish the guilt of the appellant when the ocular account finds support from the medical report, recovery of empty from the venue of occurrence and the visible unexplained abscondence of the appellant.
5. We have heard the arguments of the learned counsel for the parties and have extensively gone through the record with their valuable assistance. We could not find any force in the arguments of the learned counsel for the appellant. The instant occurrence took place at 10 a.m. And the report was made within 45 minutes after the occurrence when the injured was being taken in the vehicle.
The lodging of the report within 45 minutes excludes every possibility of, consultation or deliberation for the purpose of selecting the accused. If the complainant had not been present with his brother and his procurement was to be managed then the making of report by him at 10-45 a.m. Was not possible. The complainant when appeared as a witness he was subjected to lengthy and searching cross-examination but nothing traumatic to the case of the prosecution could be elicited from him. He firmly stood the test of cross-examination and remained successful in establishing the broad features of the case. He attributed the shot of a pistol to the appellant and the recovery of empty of .30 bore pistol from the spot give strong support to his version. The medical report is in no manner discordant with the ocular account and the mere opinion of the doctor by way of accepting a suggestion that the injury received by the deceased could be caused from a higher level would not be sufficient to, destroy the ocular account. The argument that the deceased was expected to have answered the call of nature before the time of occurrence cannot be true because in each case it depends upon the habit of a man and it is not essential that every person must go for answering the call of the nature when he gets up in the morning. Many people respond to such call even at evening time. Thus, on this score it cannot be accepted that the medical evidence was contradictory to the statement of the eye-witness and the presence of the undigested food in the stomach or intestines in the circumstances was a natural phenomenon. The next argument that the deceased could be done to death by other enemies is also not acceptable because the occurrence took place in broad-daylight and there was no question of identification. Such an argument can be advanced in a situation where it becomes difficult to fix the nomination of the real culprit. There was no reason as to why the appellant was substituted for the real culprit. The reaching of the injured at 11-35 a.m. To Mansehra Hospital cannot be looked askance because it was not brought on the record by the defence that the distance between the place of occurrence and the Mansehra Hospital was so long that the shifting of the patient to the hospital at 11-35 a.m. Was an impossibility. The argument of the learned counsel on the question of lack of proof of motive is misconceived. On this point the testimony of P.W.12 viz. Mian Khan is sufficient to establish the factum of motive. Even otherwise the proof of motive is not essential for establishing the guilt of an accused person. Even without the proof of motive conviction can be recorded on a capital charge provided othetwise the case is proved by the prosecutions In this regard the judgment in case of Saeedullah Khan v. State 1986 SCM R 1027 and PLD 2004 SC 44 can be quoted with advantage. The argument that Sain Muhammad was not produced as. a witness also cannot be of any help to the appellant because the law does not fix any particular number of witnesses for establishing the guilt of an accused. It is the quality of evidence which matters and not the quantity of witnesses. 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 that are mentioned in the F.I.R. In Riaz Ahmad v. The State 1986 SCM R 1460 the Honourable Supreme Court dealt with such an argument in the following words:-- "7. The learned counsel submitted next that the non-production of Muhammad Ilyas and Muhammad Hussain, brother and father of the deceased reflects adversely on the prosecution case. We are not inclined to agree with this submission because it was evidently no use multiplying the testimony of Salim, P.W.7 with that of other eye-witness closely related to the deceased."
6. For the purpose of looking into the correctness and legality of the conviction and sentence of the appellant we have inquisitively examined the testimony of eye-witness Mehmood Khan in the light of the ambient circumstances. We have no reason to disbelieve the statement of this eye-witness which bears all shades of truthfulness and inspires confidence. Not only that his testimony has gone unshattered in cross-examination but also it finds sufficient corroboration from the medical report, recovery of the empty of .30 bore pistol from the spot, the motive and the abscondence of the appellant. Munir in his Principles and Digest of the Law of Evidence in Volume I, 4th E Edition on page 32 has dealt with the factum of abscondence and its impact on the guilt or innocence of an accused person and has observed as follows:-- "The conduct of the accused soon after the occurrence plays an important part in determining the guilt of the accused and is a corroborative piece of evidence. The conduct of a person in, absconding after the commission of the offence is the evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which conviction can be based.
Absconding is usually consistent with innocence and guilt. It is proper matter to be considered alongwith other facts of the case whether they bear upon guilt or upon innocence."
7. We are conscious of the fact that the abscondence is a weak type of evidence and by itself cannot be made basis of conviction. However, to determine whether abscondence speaks about the innocence of the accused or his guilt would be determined keeping in view the other circumstances of the case. In the instant case abscomlence when read with the ocular account and other circumstantial evidence detailed above leaves no doubt for us to consider it a circumstance incompatible with the innocence of the appellant and it provides the necessary corroboration of the evidence of P.W. Mehmood Khan. The answer which was given by the appellant, in his statement under section 342, Cr.P.C. On the point of his abscondence also does not bear any weight because he was posted as HMC in Police Station Jalkot District Kohistan and claimed to have obtained leave on 13-11-2000 but, he could not produce any record from his Department to that effect.
8. In the foregoing circumstances we hold that the conviction of the appellant was rightly recorded by the learned trial Court and he was rightly punished. His appeal is, therefore, dismissed. The revision petition is neither pressed by the learned counsel for the complainant nor we feel inclined to enhance the punishment because only one fire shot was made by the appellant without any repetition. Thus, the same is also dismissed.