' IJAZ-UL-HASSAN KHAN, J.---The appellant namely Hanif Gul son of Noor Gul, aged about 75 years, resident of Deh Hajizai, Caharsadda, has filed instant Cr. Appeal No.616 of 2004, assailing the judgment, dated 12-7-2004 recorded by Mr. Zafar Iqbal Khan, Additional Sessions Judge, Charsadda, whereby the appellant was convicted under sections 302/148/149, P.P.C. And sentenced to life imprisonment on three counts each with a fine of Rs.1,00,000 on three counts each, under section 544-A, Cr.P.C. Or in default thereof to further undergo six months' R.I. On each count. All the sentences were directed to run concurrently. However, the appellant was extended benefit of doubt and acquitted of the charge under section 324, P. P. C .
2. The crime in question is alleged to have taken place on 18-6-1994 at 10-00 a.m. In the lands of the complainant Mujib Gul, in the limits of Deh Kangra in the precincts of Police Station Batagram, distant 6/7 Killometres from the venue of occurrence. The report was lodged the same at 11-30 a.m.
By complainant in the Police Station and it was recorded by P.W. Haji Gul, the then S.H.O. Of the Police Station concerned.
3. The prosecution story in brief, is, that on the fateful day i.e. 18-6-1994, complainant Mujib Gul along with his father Ibadur Rehman, uncle Ghaniur Rehman and cousins Janas Khan (deceased), Akhtar Rehman and Haji Rehman was present in his fields busy in weeding sugar cane crops, when in the meanwhile at 10-00 a.m, accused Hanif Gul, Shahid, Perveaz, Talib, Janas and Bashirullah armed with Kalashnikovs, came there and started firing at the complainant party, as a result whereof Ibadur Rehmman, Ghaniur Rehman and Janas Khan were hit and died at the spot. The complainant Akhtar Rehman and Haji Rehman escaped unhurt. Previous enmity between the two groups was stated to be the motive leading to the incident.
4. After recording the report Exh.PA at the instance of the complainant, S.H.O. Haji Gul (P.W.12), prepared injury sheets and inquest report of the deceaseds and dispatched the dead bodies to mortuary for post-mortem examinations. He then left for the spot and prepared site-plan Exh.PB at the pointation of the complainant, took into possession blood-stained earth from the places of the deceases and sealed the same into different parcels in presence of marginal witnesses. He also took into possession 5 empties of 7.62 bore and one spent bullet of the same bore through recovery memo. Exh.PC. He recorded statements of prosecution witnesses, obtained warrants under section 204, proclamation under section 87, Cr.P.C. Against the accused and after completing necessary investigation, submitted challan against the accused.
5. At the trial, prosecution in order to prove its case and substantiate the charge, produced 12 witnesses in all. Complainant Mujib Gul (P.W.9) and Akhtar Rehman (P.W.10) furnished eye-witness account of the incident and charged the accused for the commission of crime.
6. Dr. Jehangir Khan (P.W.3) Medical Officer, D.H.Q. Hospital, Charsadda on 18-6-1994 conducted postmortem examinations of the deceased and found several fire-arm inlet and exit wounds on their person. The wounds were not countable.
7. The accused in his statement recorded under section 342, Cr.P.C. Repudiated the prosecution allegations and claimed to have been falsely charged. Responding to a question as to what is your statement and why you are charged, the accused stated that in fact there was cross firing between the deceased and Akhtar Munir in consequence whereof Akhtar Munir received fire-arm injuries at the hands of the deceased. This fact was concealed by the Investigating Officer and A.S.- I. Fazal Mir with active connivance of the parties and he (accused) was falsely implicated in the case.
8. He appeared as his own witness on oath as required under section 340(2), Cr.P.C. And denied his participation in the case abscondence after the incidence.
9. The learned trial Judge on overall assessment of the evidence pointed out that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned Court accepted the evidence furnished by the complainant Mujib Gul and P.W. Akhtar Rehman, corroborated by medical evidence, recovery of crime empties from the spot, motive and prolonged abscondence of the accused.
10. Mr. Astaghfirullah Advocate, learned counsel for the appellant, in support of the appeal contended with vehemence that the prosecution case is full of doubts and the evidence brought on record by prosecution is not of such standard which could be made basis for the conviction. The prosecution story is full of inconsistencies, contradictions and improbabilities. The eyewitnesses effected improvements in their statements on a number of material points. On the basis of evidence of this nature, conviction cannot be recorded on capital charge. The learned counsel also maintained that the learned trial Court has disbelieved the prosecution evidence under sections 342/148/149,P.P.C. And acquitted accused of the charge of attempted murder but accepted the same set of evidence while awarding sentence to the appellant which is clearly indicative of the fact that the impugned judgment has been recorded in a mechanical manner without application of judicial mind. The learned counsel also maintained that prosecution has suppressed material facts from the Court which has made the prosecution story doubtful. The learned counsel further contended that the crime empties recovered from the spot were not sent to fire-arm expert to ascertain whether the same had been fired from one weapon or more which reflects on the prosecution version and crates dent in the prosecution story. Reverting to the question of absconsion, the learned counsel reiterated that the appellant had left the village along with his family 17/18 years prior to the occurrence and took abode in Punjab to earn livelihood and the abscondence is not sufficient to lay foundation of his conviction. Concluding the arguments the learned counsel submitted that the non-compliance of section 382-B, Cr.P.C. And withholding its benefits which is mandatory is nature, without any cogent reason by the trial Court, is illegal and unjust.
11. From the other side, Miss NeelamA-Khan Advocate, appearing on behalf of the State supported the judgment of the learned trial Court and argued that there is sufficient evidence in this case to warrant conviction and keeping the nature of offence in view, the appellant has been rightly convicted by the trial Court and, therefore, the impugned judgment is not open to legitimate exception.
12. Having heard the arguments of learned counsel for the parties with reference to the material on record, we find that prosecution has succeeded to prove its case to the hilt and the appellant is one of the perpetrators of the crime. Complainant Mujib Gul and Akhtar Rehman P.Ws. Are star witnesses in this case. They have fully supported the prosecution story and implicated the appellant and his companions for the firing on the complainant party resulting into murders of Abidur Rehman, Ghaniur Rehman and Janas Khan.
13. Mujib Gul complainant in brief deposed that on the crucial day he along with his father Ibadur Rehman, uncle Ghaniur Rehman and cousins Janas Khan (deceased) Haji Rahim (not produced) and Akhtar Rehman P.W was busy in weeding sugar cane crops in his fields when at about 10-00 a.m. Accused Hanif Gul (appellant), Shahid, Perveaz, (convicted co-accused), Talib, Janas (absconding co-accused) and Bashirullah (since dead) armed with Kalashnikovs came and started firing at the complainant party, as a result whereof Abidur Rehman, Ghaniur Rehman and Janas Khan were hit and died instantaneously. The complainant and Akhtar Rehman and Haji Rehman, however, escaped unhurt. He also stated that previous blood fued between the parties was motive for the occurrence. The complainant was duly supported by P.W. Akhtar Rehman. The learned counsel for the appellant assailed the credibility of these witnesses on the ground that complainant and P.W. Akhtar Rehman were not present at the spot and had not seen the occurrence and being closely related to the deceased are unworthy credence. We are afraid the contention raised by the learned counsel by the appellant is devoid of any. Legal force. Both the witnesses have sufficiently justified their presence at the spot at the time of incident. It is well-settled that mere relationship of the eyewitnesses with the deceased in the absence of any animus on their part against the accused cannot be made the basis of brushing aside their testimony, which is otherwise convincing in nature. Mere relationship of a witness with the deceased is no ground to discard his evidence until and unless he is otherwise found to be unreliable. In a case reported as Iqbal alias Bhala v. State (1994 SCMR 1, it was observed:-- "In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that `to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not' . "
14. It is also apparent from the record that matter was reported to the police without wastage of time nominating the appellant with a specific role. The promptness in lodging the F.I.R. Is yet another factor to strengthen the prosecution case.
15. The medical evidence is in complete harmony-,aud corroborates to the ocular testimony as regard the injuries. The same, therefore, was rightly received as corroborative to the ocular testimony. This was a correct approach towards the matter. We endorse the view taken by the learned C trial Judge in this respect.
16. The accused remained absconder for sufficient long time and proceedings under sections 204/87, Cr.P.C. Were duly completed against him but the explanation offered by the accused in his statement under section 342, Cr.P.C. Is that he did not abscond. Neither any defence witness was examined nor any record was produced to show that he was out of village in connection with labour. As such his explanation goes unsubstantiated. No doubt, abscondence, by itself, is not sufficient to convict an accused person but is a strong dispute. The judgment of the learned Additional District Judge was passed upon sound reasonings. He has also stated that marriage of Mst. Haleema Bibi with Dil Muhammad was the result of love affair, so Mst. Haleema Bibi had alienated the lands in dispute to him. The plaintiff had not produced any other witness except her own statement, which was got recorded by her as P.W.1. The plaintiff was a wise lady and had admitted that she could compare between good and bad in affairs. The possession having been changed in the Revenue Record, the judgment of the learned Additional District Judge requires to be upheld.
6. After considering the arguments of both the learned counsel and from the perusal of the record, I have found that it is an admitted fact that Mst. Haleema Bibi was a lady, who was villager, Pardaobserving and illiterate also. In such cases, the law is well-settled, that not only the transaction has to be proved with cogent evidence but that it was entered by her with conscious application of mind and through independent advice. Other factors, such as reaso.n to make gift are also to be kept in view. The disputed land was the only asset of the aforesaid lady. It was not expected from her to gift away that land to a husband, having another wife and the children from that other wife. I cannot subscribe to the view that due to love affair, the lady had contracted marriage with Dil Muhammad and had gifted away the property to him. There may be a love affair, which has also not been proved on the record, yet it could not be presumed that the lady had gifted away all her lands to that alleged donee. Such a lady could not lose all her assets, after the culmination of that alleged love affair into marriage. Independent advice was imparted to Mst.
Haleema Bibi was to be proved on the record by the alleged beneficiary. Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Ch. Nasrullah Khan v. Muhammad Raman and others 1991 CLC 104; Muhammad Hashim and others v. Arshad Javed (Irshad Javaid) and another 1991 MLD 986; Mst.
Saleema Bibi v. Sardar Khan and 4 others 1991 MLD 2359; Lal Shahadat Khan and another v. Mst. Gul Marjana 1989 CLC 803; Mst. Hussain Bibi v. Zafarullah Khan and another PLD 1967 Lahore 744 and Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609. The above noted decisions and the evidence, which I have noted in the arguments of the learned counsel for the petitioner, fully prove that the gift document was not proved up to the hilt. The arguments of the learned counsel for the respondents that the possession was changed and was with the respondents, so, the gift was proved, cannot be accepted in the instant case, because the petitioner wilt, was a villager, parda-observing lady was not managing the property herself. It was naturally her husband, the male, who was holding its possession on her behalf, therefore, the change of entries even if made on the basis of disputed registered gift-deed in the Revenue Record, were the consequences of that deed. There was no independent proof of delivery of possession. The possession of husband who was living with that wife, would be presumed to be that of his wife. As regards solitary statement of plaintiff, the argument is fallacious, because the plaintiff had only to controvert, negate and refute the execution of the alleged gift-deed, while it Was for the respondents to prove the execution and attestation of the deed of gift and transaction. The plaintiff was not required by any law to bring more witnesses necessarily and mandatorily, as the burden of proof after the statement of Mst. Haleema Bibi had shifted towards the defendants/respondents.
The judgment of the learned Additional District Judee is not maintainable in the eye of law, which has proceeded to reverse the judgment of the learned Civil Judge on presumptions and conjectures not warranted by any law and due appreciation of facts/evidence of the case.
Therefore, by accepting this civil revision, judgment of the learned Civil Judge having been found based on sound and cogent reasons is restored and upheld while the impugned judgment of the learned Additional District Judge is set aside, with no order as to cost.