' IJAZ-UL-HASSAN KHAN, J.--- This judgment will dispose of Criminal Appeal No,137 of 2004 and Criminal Revision No,3 of 2005, as both appeal and revision have arisen out of the same judgment dated 25-11-2004, passed by the learned Sessions Judge, Bannu, whereby appellant Muhammad Nawaz, was convicted under section 302(b), P.P.C. (on two counts) and sentenced to life imprisonment for two times and fine of Rs,1,00,000 (one lac) or in default to suffer further S.I. For one year. Fine, on recovery, was directed to be paid to legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The sentences were ordered to run consecutively. Benefit of section 382-B, Cr.P.C. Was accorded to the appellant. The appellant was, however, 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 23-2-1991 at `Digar Vela', in Village Katay Killay, Bannu in the precincts of Police Station Mandan. The report (Exh.P.W.8/1) about it was lodged the same day at 5-30 p.m. At the spot by P.W. Rehamzad complainant and it was recorded by P.W.
Abdul Jalal, S.H.O. Who happened to be on usual `Gasht' of the area.
3. The prosecution story in brief is, that on the fateful day, the complainant and his uncle Sarwali had gone to the field known as Tandar' in Village Katay Killay for making Bareed' (water channel) and was busy when Haq Nawaz went towards him and told him not to undertake the work. The complainant asked him that he should wait till arrival of his father Umer Ali, from Bannu. It is alleged that complainant's father returned and they went to the mosque for offering prayer and on return from the mosque, on way to the house, they came across the appellant armed with kalashnikov, Nawaz Khan, since dead, armed with .303 bore rifle and acquitted co-accused Haq Nawaz, who was empty-handed. The appellant and the dead accused at the instigation of Haq Nawaz started firing at the complainant party. The father and uncle of the complainant sustained injuries and fell on the ground, whereas the complainant escaped unhurt. When the complainant reached near them, his uncle had expired while his father was taken to Civil Hospital, Bannu, where he succumbed to the injuries and breathed his last. The complainant charged the three accused for commission of offence. The occurrence was stated to have been seen by the complainant and his brother Hukamzad and Azad Khan. No previous enmity was alleged as motive behind the occurrence except the dispute over construction of embankment.
4. S.H.O. Abdul Jalal P.W., on receiving the information regarding the occurrence, reached the spot, recorded the report at the instance, of complainant prepared injury sheet and inquest report of Sarwali deceased and dispatched the dead body to the mortuary for postmortem examination. He prepared site plan Exh.P.B. At the pointation of complainant, took into possession 4 empties of .303 bore from the place of accused Nawab Khan and 3 empties of 7.62 bore from the place of Muhammad Nawaz appellant, vide recovery memo. Exh.P.W.l/2. He also took into possession blood- stained earth from the place of the deceased Sarwali and two spent bullets from the eastern wall of the house of Badshah Khan. The last-worn clothes of the deceased brought from the hospital were taken into possession vide memo. Exh.P.W.3/1 and sent to the Chemical Examiner, Peshawar for examination. The report Exh.P.Z. Of the Examiner was placed on the file. A.S.-I. Mir Aslam P.W.
Prepared injury sheet and inquest report of Umer Ali deceased. The appellant was arrested on 24- 8-2000. On completion of investigation, challan was submitted in Court.
5. P.W. Dr. Anwar Farid Khan, Medical Officer, D.H.Q. Hospital, Bannu, conducted autopsy on the dead body of Umer Ali deceased on 24-2-1991 at 9-00 a.m. And found the following:--
(1) One fire-arm entry wound on the back size 1/2" x 1/2" just to the right side of the midline, at the level of the 7th rib.
(2) One fire-arm graize wound size 4" x 3" on the front and medial surface of the middle part of left arm.
' Probable time between injuries and death, 30 minutes to one hour and between death and post- mortem 14-1/2 to 15 hours.
6. P.W. Dr. Qazi Fayaz-ud-Din, Medical Officer, D.H.Q. Hospital, conducted post-mortem examination on the dead body of Sarwali and noted the following:--
(1) One fire-arm entry wound size 1/4" x 1/4" on the front of right side chest 2" below the right clavicle.
(2) One fire-arm entry wound 2-1/2" on the back of left side chest, 2-1/2" below the upper border of left scapula and 4" lateral to vertebrae column
(3) One fire-arm entry wound size 1/2" x 1/4" on the interior surface of the nose.
'Probable time between injuries and death, instantaneous and between death and post-mortem 14 to 15 hours.
7. At trial, the prosecution in order to prove its case against the appellant, produced 12 witnesses in all and abandoned P.W. Azad Khan being unnecessary.
8. On conclusion of prosecution evidence, accused was examined under section 342, Cr.P.C.
Wherein he professed innocence, and false implication and opted to be examined on oath and also to produce defence. Accordingly the accused was examined on oath under section 340(2), Cr.P.C. And he also produced one Zarif Khan in his defence.
9. It may be pertinently mentioned here that accused Haq Nawaz was tried and acquitted by the learned Sessions Judge, Bannu vide his judgment dated 17-8-1999, on the ground that a proverbial role of Lalkara was attributed to him and case against him for vicarious liability was not proved.
Accused Nawab Khan reportedly died and proceedings against him were abated. Appellant Muhammad Nawaz was convicted under section 302(b), P.P.C. In a previously held trial by the learned Sessions Judge, Bannu vide judgment dated 25-1-2003 and was sentenced to undergo R.I.
For life. Two times. He was, however, acquitted of the charge under section 324, P.P.C. The appellant challenged his conviction by filing an appeal before this Court. Vide order, dated 23-9-2001, case was remanded and returned to the trial Court for de novo trial.
10. The learned trial Judge, acting on the material on record, proceeded to hold that prosecution has been able to establish its case against the appellant beyond any reasonable doubt. He convicted and sentenced the appellant as mentioned and detailed above.
11. Syed Zafar Abbas Zaidi, Advocate, appearing on behalf of the appellant, contended emphatically that factual and legal aspects of the case have not been appreciated in its true perspective which resulted in grave miscarriage of justice. It is, next contended that prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence which aspect of the matter went unnoticed causing serious prejudice against the appellant. It was also contended that the medical evidence was in conflict with ocular version which aspect of the matter has not been dilated upon properly but on the contrary medical evidence is misconstrued and the oral version has not been examined thoroughly. It is also argued that there are various glaring contradictions which are not noticed by the trial Court which resulted in serious miscarriage of justice. It is pointed that the motive as mentioned in the F.I.R. Could not be established besides that no investigation whatsoever was conducted to determine its genuineness. Additionally, it was submitted that the acquittal of the appellant under section 324, P.P.C. Amounts to disbelieve the prosecution evidence and the same evidence could not be accepted for sustaining the conviction under section 302(b), P.P.C. It was further contended that if the venue of crime is noticed it becomes clear that the injuries as found on the deceased could not be caused from the places attributed to the accused. This factor alone is sufficient to infer that the occurrence did not take place in the manner as alleged by the prosecution. In the last limb of arguments, it was reiterated that the sentences for life imprisonment ordered to run concurrently are against law and justice and cannot be allowed to remain intact:
12. Chaudhary Muhammad Sharif, learned Deputy Advocate General assisted by Messrs Sanaullah Khan Gandapur and Muhammad Farooq, Advocates, for the complainant, on the contrary, supported the impugned judgment qua conviction but stated that sentence awarded to the appellant is inadequate And does not commensurate with the gravity of the offence. The appellant is guilty of committing brutal murders of two brothers for a petty matter and there is nothing which could justify the award of lesser penalty. Concluding the arguments, the learned counsel maintained that the appellant is also responsible for the attempted murder of the complainant but has been exonerated of the charge without any legal justification. To augment the contentions, reliance was placed on Javed Malik v. The State 2005 SCM R 49, Asim v. The State 2005 SCM R 417 and Ali Khan v. The State PLD 1980 SC 109.
13. We have heard learned counsel for the parties and have gone through the evidence in entirety.
For reappraisal of evidence, we have taken everything into our full consideration in the light of arguments advanced by both the sides.
14. In order to prove the charge against the appellant, prosecution has mainly relied upon the statements of two eye-witnesses, namely, Rehamzad complainant and his brother Hukamzad P.Ws., crime-empties, the motive, Medico-legal reports and abscondence.
15. After hearing the arguments of the learned counsel, we have noticed that the F.I.R. In this case had been lodged with reasonable promptitude eliminating all possibilities of fabrication and false involvement. The appellant had been specifically nominated therein as the principal perpetrator who had caused death of two brothers by firing. The presence of the eye-witnesses at the spot cannot be disputed with any degree of seriousness. They did not have any serious motivation to falsely implicate the appellant in a case of this nature. Both the witnesses had made consistent statements before the trial Court and their credibility could not be shaken during their cross- examination. The straightforward statements made by them at the trial Court have impressed us and we have found them to be reliable enough to place implicit reliance upon them. The eye- witnesses have sufficiently accounted for their presence at the spot. There is nothing to doubt the conduct of the witnesses. The ocular account narrated by these witnesses stands corroborated by the medical evidence which proves the fact that the deceased died by firearm injuries. The mere fact that the eye-witnesses had succeeded in escaping unhurt or there are 'minor discrepancies in their statements, cannot be taken to be a sufficient ground for discarding their evidence. In the case of Iqbal alias Bhala v. State 1994 SCM R 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 SCM R 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' ."
16. It is now a settled rule of law that if the testimony of relative is corroborated through circumstantial evidence or other pieces of evidence, their relationship, or relation with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The mere fact that a witness is relative of the deceased, is not per se enough to discredit the witness unless it is established that the witness was inimical towards the accused and if it is found, that in the circumstances of the case, the presence of such a witness cannot be denied, then his evidence could not be discredited. We are satisfied that the eye-witnesses were accompanying the deceased at the time of incident and their claim of having seen the tragedy, stands proved from the material on record.
17. The learned counsel for the appellant contended with force that the acquittal of the appellant under section 324, P.P.C. For attempting at the life of the complainant, amounts to disbelieve the prosecution evidence and the same evidence could not be accepted for sustaining the conviction under section 302(b), P.P.C. The submission of the learned counsel is misconceived. The evidence regarding attempted murder was found insufficient and the appellant was extended benefit of doubt and acquitted of the charge as abundant caution. The finding is not questionable.
18. Adverting to the argument that medical evidence runs contrary to the prosecution version, it may be observed that the medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case. It is the prosecution version that the appellant fired at the deceased with kalashnikov. Four empties of .303 bore from the place of accused Nawab Khan (since dead) and three empties of 7.62 bore from the place of appellant Muhammad Nawaz have been recovered, which lend strength to the prosecution story.
19. A strong motive is alleged against the appellant and he is said to have taken the lives of two innocent brothers for a petty matter i,e, dispute over construction of embankment. The motive is furnished in the F.I.R. As well as in the statement of complainant. The motive has been established satisfactorily. Anyhow, it is not denied that mere absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. Motive is not considered a sine qua non for proving the offence of murder and mere absence of motive is no ground to doubt the truth of prosecution case. Muhammad Ramzan v. The State 1992 PLD 302 and Government of Sindh v. Sobharo 1993 SCM R 585.
20. The crime in question is alleged to have taken place on 23-2-1991. The appellant remained fugitive from justice for more than nine years. He was arrested on 5-10-2000. The learned counsel for the appellant contended that as the abscondence had been satisfactorily explained, it could not at all provide corroboration and even in cases where it is proved as a fact, it has a very weak corroborative value.
' No doubt, it is true that the abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge and in absence of any other corroborative evidence, this evidence even if I found convincing, would not be sufficient by itself to warrant the conviction of the accused person on a charge of murder, but in the instant case, the prolong and noticeable abscondence of the appellant would go a long way to corroborate and strengthen the truth of the prosecution version and indicate guilt of the appellant. Aminullah v. The State PLD 1976 SC 632.
21. In view of what has gone above, it follows that prosecution has successfully established the murder charge against the appellant who rightly stood convicted and sentenced by the trial Court.
There is hardly any substantial ground for lawfully challenging the impugned judgment. The appeal-fails, which is hereby dismissed with modification that both the sentences awarded to the appellant shall run concurrently.
'Adverting to Criminal Revision No,3 of 2005, 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 declined to award death sentence to the appellant and we see no justification to disagree with him. Criminal revision is also dismissed.