1. Ijaz-ul-Hassan J.--Abdul Matin appellant after having been tried alongwith his brother Fazal Rehman (acquitted co-accused), by learned Additional Sessions Judge, Peshawar, for committing Qatl-i-Amd' of his co-villager Alam Khan, was convicted by judgment dated 4.10.2004, under Section 302 PPC and sentenced to suffer 25 years R.I. with further direction to pay compensation of Rs, 1,00,000/- to legal heirs of the deceased under Section 544-A Cr.P.C. or in default thereof to undergo six months S.I. Benefit of Section 582-B Cr.P.C. was extended to the appellant. Fazal Rehman co-accused was, however, extended benefit of doubt and acquitted of the charge.
2. 2.The appellant through Criminal Appeal No, 793/2004, under Section 410 Cr.P.C. has challenged his conviction and sentence. Complainant Muhammad Fayaz has filed Criminal Revision No, 220/2004 for the enhancement in his sentence from life to death.
3. 3.As both these matters have arisen out of one and the same judgement and under common set of facts, hence are being disposed of by this judgment.
4. 4.The crime in question is alleged to have taken place on 9.8.1996 at 11.30 a.m., near the flour mills of one Haji Abdur Rauf, distant one kilo meter from Police Station Urmar and the report (Ex. PA/1) about it was lodged the same day at 12.30 p.m. by complainant Muhammad Fayaz, brother of Alam Khan deceased and it was recorded by Inspector Taj Muhammad Khan, (PW.7), the then SHO Police Station Urmar.
5. 5.The facts of the case in brief are, that on the fateful day, complainant, his cousin Nasrullah and brother Alam Khan deceased were on the way to the village. The deceased was a little ahead, riding on a donkey cart. When they reached the venue of occurrence, Fazal Rehman armed with Klashinkov commanded his brother Abdul Matin (appellant) and son Feroz (absconding co- accused) to kill the deceased. Abdul Matin and Feroz acted sharply and started firing with Klashinkoves, as a result of which deceased was hit and fell on the ground. Muhammad Shah, Shamshad, Bahader also followed suit and resorted to firing. The complainant and Nasrullah PWs in order to save their lives, took shelter in the nearby graveyard. After accomplishing the mission, the accused made good their escape. Previous enmity between the two families was stated to be the motive behind the occurrence.
6. 6.On receipt of information that a person has been murdered in Urmar Payan, SHO Taj Muhammad Khan (PW.7) immediately rushed to the spot and recorded the report at the instance of complainant Muhammad Fayaz. He prepared injury sheet Ex. PM/2 and inquest report Ex. PM/1 of the deceased and dispatched the dead body to the mortuary for post mortem examination under the control of FC Naushad (PW.9). He also prepared site plan Ex. PB at the pointation of the complainant, with all its foot notes and sketches. He secured and took into possession blood stained earth from the spot and packed the same into parcel vide recovery memo Ex. PC. He also took into possession an empty of 7.62 bore from the spot vide memo Ex. PC/1. He received the last worn clothes of the deceased consisting of Vameez' and `Shalwar' brought from the hospital by FC Naushad, sealed the same into parcel, placed on record report Ex. PK of Forensic Science Laboratory, Peshawar, applied for warrants and proclamations against the absconding co- accused and after completing the necessary investigation, submitted challan against the accused.
7. Dr. Sirajul Munn. (PW.8), Medical Officer, Basic Health Unit, Mohib Banda, Pabbi on 9.8.1996 at 2.30 p.m. conducted the post mortem examination of the deceased and found the following:-- INJURIES 1.F.A. entry wound situated on left temple .5 cm in diameter 2 cm from the left ear 5 cm from left eye.
7. 2.F.A. exit wound situated on left thigh angle of mouth.
8. 3.F.A. entry wound on front of right side of chest .5 cm in diameter 6 cm from midline 8 cm below the clavical.
9. 4.F.A. exit wound right side back of chest 3x1 cm in size 3 cm from midline 10 cm below the angle of scapula.
10. EXTERNAL INJURIES Thorax Walls, ribs and cartilages pleaurae, right lung and blood vessels injured.
11. Abdomen.
12. Phayranx injured, stomach and its contents empty and healthy. Fracture on lower jaw. In the opinion of the doctor the deceased died due to injuries to major blood vessels of neck i,e, caroted artery and right lung due to fire arm. Probable time between injury and death........immediate. Probable time between death and P.M 3 to 4 hours.
8. During the trial, prosecution in order to prove its case and substantiate the charge, examined 11 witnesses in all and abandoned IHC Bahad Khan and constable Qaiser Khan as unnecessary. After the close of the prosecution evidence, statements of accused and co-accused were recorded under Section 342 Cr.P.C. in which thy denied the prosecution allegations, professed innocence and claimed to have been charged falsely on mere suspicion in the background of enmity between the two families. They did not want to examine themselves under Section 340(2) Cr.P.C. and they did not offer any evidence in defence. The trial Court taking into consideration the material available on the record believed the prosecution story and convicted and sentenced the appellant as mentioned and detailed above.
13. 9.In support of appeal, Mr. Noor Alam Khan, Advocate for the appellant contended that it was an unseen occurrence and blind murder. According to him, the prosecution story, as given in the FIR, is unnatural and if the complainant or his cousin were present, they would have intervened to protect and save the deceased. The learned counsel also contended that the ocular account is belied by medical evidence; that FIR was lodged after the delay of one hour, which shows that PWs were not sure about the culprits and there was pre-consult and consultation. The learned counsel further submitted that where the ocular evidence has been disbelieved qua the acquitted co-accused, there was absolutely no justification for the conviction of the appellant in the absence of substantial corroboration by independent evidence. The learned counsel added that the entire prosecution case suffers from infirmities, improbabilities, weakness and material contradictions.
14. The whole case being full of doubt is shrouded in mystery and there being no evidence connecting the accused with commission of crime, the learned trial Court has acted in disregard of settled principle of law and justice by convicting the appellant on capital charge merely on the statement of the complainant and his cousin which are not worth reliance. Adverting to motive, learned appellant's counsel maintained that in the present case if the alleged motive could propel the appellant into aggression against the complainant party, then at the same time it was equally possible that the same background of enmity would prompt the above mentioned eye witnesses to falsely implicate the appellant in this case. Concluding the arguments, it was asserted that abscondence is a weak type of evidence and should not have influenced the mind of the learned trial Court as a piece of corroborative evidence. To substantiate the pleas, reliance was placed on Din vs. Kala and another (PLD 1970 SC 26), Taj Muhammad Vs. Resham Khan and others (1986 SCM R 823), Muhammad Ilyas vs. The State (1997 SCM R 25) and Iftikhar alias Istikhar vs. The State (PLD 2004 Peshawar 143).
15. 10.Mr. Muhammad Saeed Khan, learned Additional Advocate General, appearing on behalf of the State assisted by Mr. Muhammad Arif Khan, Advocate for the complainant, supported the impugned judgment qua conviction of the appellant by submitting that it was a day light occurrence, FIR was lodged promptly, the appellant was specifically named and definite role was assigned to him, prosecution witnesses have fully supported the case and the prosecution story stands corroborated by ocular account, medical evidence, motive, recovery of crime empty and noticeable abscondence of the appellant. Adverting to the Criminal Revision, the learned counsel maintained that the learned trial Court while awarding sentence of imprisonment for life did not mention any fact, such as motive, recovery, premeditation or any other factor to be a mitigating circumstance. The law of the land is that normal sentence for an offence of murder is death, which is to be awarded as a matter of course except where the. Court finds some mitigating circumstance which may warrant imposition of lesser sentence.
16. 11.We have heard the learned counsel for the parties and have minutely perused the record as well as impugned judgment and cited case law. It is a case of prosecution that on fateful date complainant, his brother Alam Khan deceased and cousin Nasrullah PW were on the way to the village. The deceased was a little ahead of them, riding on a donkey cart. When they reached the site of occurrence, Fazal Rehman acquitted co-accused commanded the appellant and Feroze absconding co-accused to fire at the deceased. They acted sharply and resorted to firing with their Klashinkoves, as a result whereof Alam Khan was hit and fell on the ground. Muhammad Shah and others also participated in the firing. The complainant and his cousin took shelter in the nearby graveyard. After achieving the object, the accused persons bolted away. The motive leading to the incident was stated to be previous blood fued between the families.
17. 12.It may be stated here with advantage that co-accused Muhammad Shah, Rahim Shah, his son Shamshad, Bahader and his son Shamshad, alleged to have fired at the complainant party. have been acquitted on the basis of a compromise vide judgment dated 21.3.2003 of learned Additional Sessions Judge, Peshawar.
18. 13.After hearing learned counsel for the parties and going through the record with their assistance, we have straightaway noticed that the eye witnesses namely, Muhammad Fayaz compliance and his `phoopizad' Nasrullah PWs, were the natural witnesses of the occurrence who had not only furnished a convincing and confidence inspiring account of the incident in detail, but had also resolutely withstood the test of cross examination. The FIR was lodged promptly without any delay i,e, without an hour of the occurrence. The learned counsel for the appellant has not been able to point out any mis-reading or non-reading of evidence or any conflict between the ocular account and the medical evidence. The learned counsel for the appellant vehemently contended that eye-witnesses are closely related to the deceased, therefore, being interested witnesses, their evidence cannot be relied upon. The submission is not well found. It may be observed that ecause of mere relationship, a witness cannot be described as an interested witness. An interested witness is one who has reasons for false implication with ulterior motive.
19. Needless to emphasize that mere relationship is no ground for discarding the evidence of a witness as held in a case reported as Farmanullah vs. Qadeem Khan and another (2001 SCM R 1474), wherein it was observed :-- "It is well-established by now that mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, as 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."
20. 14.The medical evidence has fully established that the death of the deceased had occurred due to the fire arm injuries, found on his dead body and the time of infliction of the same has tallied with the time of the occurrence as appeared in the evidence of the aforesaid eye-witnesses against the appellant.
21. 15.Strong motive is alleged against the appellant. The motive is furnished in the FIR as well as in the statements of eye-witnesses. 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 vs. the State (1992 PLD 302) and State/Government of Sindh through Advocate General Sindh, Karachi vs. Sobharo (1993 SCM R 585).
22. 16.The crime in question having taken place on 9.8.1996, the appellant was arrested on 12.3.2002 from Gujrat. No doubt, abscondence by itself is not sufficient to convict an accused person but it is strong piece of corroborative evidence of the direct and circumstantial evidence in the case. The appellant remained fugitive from law for more than six years without any plausible and reasonable explanation. His conduct after the occurrence is indicative of his guilt when considered in conjunction with ocular and circumstantial evidence in the case. No doubt, it is true that the absondence 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 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 C would go a long way to corroborate and strengthen the truth of the prosecution version. 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 material on record. Mst. Roheeda vs. Khan Bahadur and another (1992 SCM R 1036) and Nazar Muhammad vs. State (2004 PCr.LJ 1684 Peshawar).
23. 17.Abdul Matin appellant and Feroz absconding co-accused are alleged to have fired at Alam Khan deceased with Kalshinkoves, resulting in the murder of the deceased. An empty of 7.62 bore has been recovered by the Investigating Officer during the spot inspection. This recovery is also a corroborative piece of evidence and connect the appellant with the guilt.
24. 18.The case laws referred by learned counsel for the appellant to argument his contentions are distinguishable and not attracted in the case for want of similar facts and circumstances. Each criminal case has its own peculiar facts and, circumstances and it is the question of satisfaction of the Court which depends upon evidence produced by the parties.
19. What has been discussed hereinabove, we find 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.
25. Adverting to criminal revision filed on behalf of the complainant, there is no doubt that when an offence is proved, 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 learned trial judge in his wisdom declined to award death sentence to the appellant. We, in view of the circumstances of the case, also feel inclined to hold the same view and endorse the reasons given by the trial Court for not awarding the sentence of death. Criminal revision is also dismissed.