' IJAZ-UL-HASSAN KHAN, J.--- By this judgment, Criminal Appeal No,65 of 2004 filed by appellant Shamasud Doha son of Muhammad Israel (19/20), resident of Gharib Abad Mandan, District Bannu is being disposed of which has emerged from judgment, dated 29-5-2004 passed by Mr. Muhammad Adil Khan, Judge, Juvenile. Court, Bannu, whereby appellant, after conclusion of the trial, was convicted under section 302, P.P.C. And sentenced to suffer life imprisonment and to pay a compensation of Rs,50,000 to the complainant side under section 544-A, Cr.P.C. Or in default whereof, to further undergo three months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. The details of the occurrence are to the effect that on the crucial day i,e, 22-9-2002, deceased Sadiqullah, grandson of complainant Haji Ayub Khan had gone out of the house. The daughter-in- law of the complainant asked the complainant to call Sadiqullah for having meals. The complainant left the house and in the way met his son P.W. Attaullah Jan. Complainant inquired about Saddiqullah from him. In reply Attaullah Jan told the complainant that Saddiqullah has gone to the volley ball ground. They both started towards volley ball ground. In the meanwhile, accused Shamsud Doha reached near Saddiqullah and fired at him with .30 bore pistol, as a result whereof Saddiqullah was hit and fell on the ground. After accomplishing the mission, accused decamped from the spot. The complainant and his son Attaullah Jan were stated to have witnessed the occurrence.
3. Explaining the motive, it was stated that 10/20 days prior to the occurrence, accused and deceased had quarrelled with each other and exchanged harsh words, on account of which accused was nourishing grudge and was on a look to teach a lesson to the deceased and take revenge of his insult.
4. Haji Muhammad Ayub complainant arranged a Datsun Pick-up and took the injured to the hospital with the help of co-villagers. The victim succumbed to the injuries and expired in the way.
H.C. Maqsoom Ali Shah (P.W.3) recorded report of the complainant at D.H.Q. Hospital, Bannu at 11- 50 hours in the shape of Murasila Exh.P.A./1 and dispatched the same to the 'police station where it was correctly incorporated into F.I.R. Exh.P.A. By A.S.-I. Akhtar Ali Khan (P.W.12). He prepared injury sheet and inquest report of the deceased and dispatched the dead body to the mortuary for post- mortem examination. After registration of the case, A.S.-I. Akhtar Ali Khan (P.W.12) proceeded to the spot and prepared site plan Exh.P.B. On the pointation of complainant and eyewitness. During spot inspection, he took into possession blood-stained earth from the place of deceased and one spent bullet of .30 bore and sealed the same into parcel vide memo. Exh.P.W.11/1 in the presence of marginal witnesses. He also took into possession one gold club and watch produced by P.W.
Attaullah Jan. He initiated proceedings under sections 204/87, Cr.P.C. Against the accused and placed on record report (Exh.P.K.) of F.S.L. Peshawar. The accused was arrested by Gul Faraz Khan A.S.-I. On 22-3-2003. On completion of investigation, Inspector Bashar Ahmad (P.W.7) submitted complete challan against the accused.
5. The prosecution in order to prove its case against the accused, produced twelve witnesses in all.
Complainant Haji Ayub Khan (P.W.10) and his son Attaullah Jan (P.W.11) furnished eye account of the occurrence and charged the accused for the commission of crime.
6. Dr. Ayub Nawaz (P.W.8), M.O., D.H.Q. Hospital, Bannu on 22-3-2002 at 1 p.m. Conducted post- mortem examination on the dead body of deceased and found the following:--
(1) One FA entry wound right/side of the forehead anteriorly six 1/4 x 1/4".
(2) One FA exit wound posterior aspect of the skull, brain matter is out, size 1 x 1/2"
' Scalp, skull and membranes. Scalp, skull and membrane injured.
' Abdomen. Healthy. Stomach contained semi-digested food, also large intestines was having some digested food.
' Muscles bones and joints. Skull bone fractured.
' In the opinion of the Medical Officer, the deceased died due to fire-arm injury to vital organs i,e, brain which damaged the brain and caused excessive bleeding, shock and death. Probable time between injury and death: 10-20 minutes whereas between death and P.M. 1/2 to one hour.
7. On the completion of prosecution evidence, accused was examined under section 342, Cr.P.C. He denied his participation in the case alleging his false implication and professed innocence. He did not appear as his own witness on oath as required under section 340(2), Cr.P.C. However, one Hazrat Umar was produced in defence as (D.W.1).
8. The trial Court believed the prosecution evidence on the basis of ocular account which was supported by medical evidence, motive, recoveries and abscondence and the accused was convicted and sentenced as mentioned in the opening paragraph of this judgment.
9. We have heard Mr. Sanaullah Khan Gandapur, Advocate for the appellant and Syed Abid Hussain Bukhari, Advocate for the State assisted by Mr. Khawaja Nawaz Khan, Advocate for the complainant at some length in the light of material on file.
10. Learned counsel for the appellant strenuously argued that in view of the material contradictions in the testimony of eye-witnesses, their presence at the scene of occurrence was highly doubtful; that they have not been able to sufficiently justify their presence at the place of occurrence; that there are glaring contradictions between medical evidence and ocular account; that the whole prosecution story is shrouded in mystery and is full of doubts appearing at every step; that the appellant had no motive to kill the deceased; that the alleged abscondence of the appellant has unnecessarily been highlighted and that ordinarily delay of 20/30 minutes in lodging the report may not have much significance but the peculiar circumstances in this case manifestly suggest that time was consumed in fabricating the case and bringing the false charge at the appellant's door step. To substantiate the contentions, reliance was placed on Muhammad Ilyas V. The State 1997 SCMR 25, Farman Ali and others v. The State PLD 1980 SC 20; Siraj Din v. Kala and another PLD 1964 SC 26 and Asghar v. The State PLD 1970 Lah.
878.
11. Whereas learned counsel appearing on behalf of the State briefed by learned counsel for the complainant opposed these arguments advanced by the learned counsel for the appellant and submitted that the prosecution has proved the guilt of the appellant to the hilt by producing worthy of credence eye-witness account duly supported by medical evidence, motive, recovery of crime- empty from the spot and factum of abscondence and thus, the conclusion as arrived at by the trial Court being well-based and unexceptionable, does not warrant interference. In this connection, they placed reliance on Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676, Amal Sherin and another v. The State through Advocate-General N.-W.F.P. PLD 2004 SC 371, Wilayat Ali v. The State and another 2004 SCMR 477, Rashid Ahmad alias Kuku v. The State 2003 SCMR 497, Gul Raza v. The State and 4 others PLD 2004 Pesh. 219 and Iftikhar alias Istikhar v. The State and another PLD 2004 Pesh.
143.
12.We have thoroughly appreciated the evidence on record in the light of submissions made by both the learned counsel for the parties. It transpires from the record that the occurrence took place on 22-3-2002 at 1-15 hours and the matter was reported to the police at D.H.Q. Hospital, Bannu at 11-50 hours without loss of time. Thus, it is promptly lodged report and the complainant had no occasion to make deliberations and falsely implicate the appellant with whom he had no enmity whatsoever. The complainant has appeared as P. W.10 and has corroborated the contents of his report (Exh.P.A.). Attaullah Jan P.W. Has appeared as P.W.11 and made a deposition wherein he has fully corroborated in material particulars the statement made by the complainant. No cogent evidence has been produced by the defence that the witnesses were not present at the spot. The statement of Hazrat Umar D.W. Hardly inspires confidence. He is related to the appellant and lives at a distance of about one kilometer from the venue of occurrence. He has not been able to plausibly account for his presence near or around the spot. His claim of having reached the spot on hearing report of fire shot and seen the victim lying on the spot all alone stands belied by a host of circumstances. It is true that the complainant is grandfather and P.W. Attaullah Jan is uncle of the deceased and as such are interested witnesses but there is nothing on the file to show that they have falsely implicated the appellant. It is to be appreciated that the statement of an interested witnesses is to be considered with abundant caution; nevertheless the statement of a witness cannot be disbelieved merely because he is an interested witness, unless it is further shown that he has falsely implicated the accused. Both the witnesses have been subjected to lengthy cross-examination but nothing fruitful could be adduced from their statements. Their evidence inspires confidence and there is nothing to disbelieve the ocular account of the occurrence seen by them. Eye-witnesses are independent and disinterested and there being no possibility of false implication, the charge stood fully proved against the appellant. Undoubtedly the evidence of an interested witness lacking any corroboration cannot be made basis on a capital charge but in the instant case despite close relationship of eye-witnesses, we have found that the said witnesses have no motivation to falsely implicate the appellant in a case of this nature. Both the witnesses have made consistent statements before the trial Court and their credibility could not be shaken during their cross-examination. They cannot be termed as interested witnesses merely due to their relationship with the deceased. It needs no reiteration that mere relationship with the deceased is not sufficient to discard the testimony of an eye-witness who is otherwise found truthful and confidence-inspiring by the Court. In a case reported in Muhammad Akhtar Ali v. The State 2000 SCMR 727 it was observed:-- "Moreover, we find that none of the two eye-witnesses could be termed as interested witness because none had any previous illwil or grudge against the petitioner. Merely, because P.W.4 is father of the deceased and P.W.5 belongs to the Baradari of the deceased, would not make them interested as they had no reason to substitute the petitioner for the real killer."
13. It is settled proposition of law that in a criminal trial, it is never the quantity but quality of evidence which weighs with the Court. It is the intrinsic worth and credibility of the deposition and the independence of the witness which is taken into consideration by the Court while appreciating the evidence.
14. It may be observed here that distinction has always to be made in minor inconsistencies or variance in the testimony of witness from the contradiction in the evidence. Only such statement shall be treated as contradictory, which is either destructive of each other or it is totally different to the extent that the two versions cannot be reconciled. Such contradiction shall always lead to benefit of accused person entailing their acquittal. However, the variance in the testimony of a witness or inconsistencies on the points that are not material would not lead to such E conclusion and result. It is also be kept in mind as to how much time is elapsed between an incident and the recording of evidence. If the evidence has been recorded within few days or even few months, the witnesses shall be required to be more consistent than in the case of recording of evidence after lapse of considerable long time. It is also an undisputed proposition that the perceptions are different, the faculties of memory and retention are also different and the capability of narrating the details of an incident different from person to person. In these circumstances, the minor inconsistencies and variance in evidence on immaterial points are to be ignored.
15. There was no previous enmity of serious nature between the parties actuating the eye- witnesses to nominate the appellant falsely and allow the real culprit go scot free. Substitution in a case of single accused is rare phenomenon. In the absence of any previous enmity between the parties, the testimony of complainant and his son as eye-witnesses did not suffer from any legal infirmity warranting outright rejection. The occurrence took place in broad-daylight and the matter was promptly reported by complainant. The witnesses gave true account of the occurrence and they were rightly believed by the trial Court. Thus, the promptitude in lodging F.I.R., absence of any motive for false implication, confidence-inspiring statements of eye-witnesses, strong, corroboration by Medico-legal report as confirmed by the Medical Officer as P.W.4, recovery of incriminating articles and abscondence fully establish that the prosecution has brought home guilt of the accused beyond any shadow, of reasonable doubt and the accused is author of the crime.
16. Adverting to the argument that medical evidence is in conflict with ocular version, it may be observed that the medical evidence is in complete harmony with the ocular testimony of the complainant and no conflict could be pointed out to create dent in the prosecution case. The submission of the learned counsel is fallacious. The mere fact that semi-digested food was found in the stomach, of the deceased, by itself, is not sufficient to indicate that the time of occurrence was changed and the occurrence has not taken place as alleged. It may be noted that evidence furnished by an expert is always treated to be of confirmatory nature qua the ocular testimony and if latter kind of evidence is trustworthy, confidence-inspiring and consistent, then the expert opinion will not H outweigh it. If an authority is needed on the point, reference can be made to Muhammad Hanif v. The State PLD 1993 SC 895 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758.
17. The motive set up by the prosecution has been found by us to have been amply proved as the same has not been questioned by defence. I 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 an offence of murder and mere absence of motive is no ground to doubt the truth of prosecution case as held in Muhammad Ramzan v. The State 1992 PLD 302 and Government of Sindh v. Sobharo 1993 SCMR 585.
18. It is in the evidence that appellant disappeared from the village and remained in hiding for about one year. He was arrested on 22-3-2003. This piece of evidence was specifically put to the appellant in his statement under section 342, Cr.P.C. And he could not offer any tenable explanation. When no reason is put forward by the accused, then this circumstance coupled with other evidence weighs rather heavily against the accused. Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 and Amanullah Khan and 3 others v. The State 2002 PCr.LJ 1934 (Lahore).
19. Taking into consideration the overall facts and circumstances of this case, we are confident that the prosecution has been successful in proving its case against the appellant to its hilt. The judgment is passed on the basis of law and facts and there are no chances of false implication.
Resultantly, the appeal fails which is hereby dismissed. The impugned judgment is maintained.