1. ' JEHANZAIB RAHIM, J.---This appeal is directed against the judgment dated 6-10-2004 passed by the learned Sessions Judge, Kohat whereby the appellants Lal Mast son of Sar Mast and Tahir-ud- Din son of Khan Muhammad were convicted under sections 302/34, P.P.C. And sentenced to imprisonment for life with a fine of Rs,1,00,000 (Rupees one lac) each or in default of payment of fine to further undergo two years rigorous imprisonment. The fine, if realized, half of the same shall be paid to the legal heirs of the deceased as required under section 544A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was extended to both the appellants.
2. ' Brief facts of the case are that the complainant, Muhammad Tariq, with the dead body of his uncle, Riayat Gul in the Emergency Room of LMH, Kohat reported to police that he, along with his uncle, came out of their house and saw Lal Mast armed with Kalashnikov and Tahir with pistol present near their house. His uncle wanted to forbid them from purposeless sitting near their house but both the appellants opened tire at his uncle and as a result he was hit and died on the spot.
3. The occurrence was also witnessed by Mst. Papila Jan, the widow of deceased. The motive for the offence was that the deceased had forbidden the appellants to sit near their house even prior to the occurrence. The report was recorded by Amal Khan, A.S.-I. In the shape of Murasila and sent to the Police Station for registration of the F.I.R. Accordingly a formal F.I.R. No,342 dated 8-8-2002 under section 302/34, P.P.C. Was registered against the appellants at Police Station Cantt. Kohat. He also prepared the injury sheet, inquest report and left the dead body in the hospital for post- mortem examination.
4. ' The investigation in pursuance of the above was carried out. Syed Shaukat Ali Shah, A.S.-I. On receipt of the copy of F.I.R., proceeded to the spot and recovered blood-stained earth, wheat straw (Bhoosa), one spent deformed bullet, one empty of .30 bore. He prepared the site-plan at the instance of complainant and the eyewitnesses, received the blood-stained garments of the deceased and sent the same to the Serologist/FSL and received his report in positive. He obtained warrants of arrest under section 204, Cr.P.C. And also proclamation notices under section 87, Cr.P.C.
5. Against the appellant,Recorded the statements of P.Ws. And, after completion of investigation, handed over the file to Nijat Khan, S.-I. For submission of challan.
6. ' Nijat Khan, S.-I. Submitted the complete challan to the Court under section 512, Cr.P.C. Against the appellants. However, the appellants were arrested on 26-1-2003 and, after necessary investigation, Muhammad Ayub, S.-I. Submitted supplementary challan against them for trial. The copies of the relevant documents as required under section 265-C, Cr.P.C. Were supplied to the appellants. The charge was accordingly framed against them to which they pleaded not guilty and claimed trial.
7. ' The prosecution, in order to prove the charge and substantiate the allegation levelled against the appellants, produced ten witnesses at the trial. Ihsanullah (P.W.1) identified the dead body of the deceased. Muhammad Tariq (P.W.2) reiterated the contents of Murasila on oath. Mst. Papila Jan (P.W.3) supported the narration of facts provided by the complainant. Afsar Khan, HC (P.W.4) was marginal witness to the recovery memo., Exh.P.C. Vide Which the Investigating Officer took into possession blood-stained clothes of the deceased and to the recovery memo: Exh.P.C./1 vide which he recovered blood-stained earth, wheat straw, deformed piece of bullet and one empty of.30 bore from the spot. Asmatullah, DFC (P.W.5) took the warrants under section 204, Cr.P.C. For execution but returned unserved vide Exh.P.W.5/1 and Exh.P.W.5/2. He also took the proclamation notices under section 87, Cr.P.C. And, after its execution, returned to the Court vide Exh.P.W.5/3 and Exh.P.W.5/4. Nijat Khan, S.-I. (P.W.6) submitted complete challan against the appellants under section 512, Cr.P.C. Muhammad Ayub, S.-I. (P.W.7) arrested the appellants on 26-1-2003 along with Kalashnikov rifles and ammunitions vide arrest card, Exh.P.W.7/1 and submitted supplementary challan against them. Amal Khan, A.S.-I. (P.W.8) recorded the Murasila Exh.PA/1, prepared the injury sheet Exit P.W.8/1, inquest report Exh.P.W.8/2 and left he dead body in the hospital for post-mortem examination. Attaullah, FC (P.W.8-A) escorted the dead body from the spot to LMH, Kohat and, after post-mortem examination, brought the deceased's garments, post-mortem report and delivered to the Investigating Officer in the Police Station. Syed Shaukat Ali Shah, A.S.-I. (P.W.9) conducted the investigation and produced recovery memo., Exh.P.C. And Exh.P.C./1; site-plan, Exh.P.B.; FSL report.
8. Exh.PZ; applications for warrants of arrest under section 204, Cr.P.C. And proclamation notices under section 87, Cr.P.C. Vide Exh.P.W.9/1 and Exh.P.W.9/2. Dr. Iftikhar Iqbal (P.W.10) conducted the autopsy on the dead body of Riayat Gul and reproduced the contents of post-mortem report, Exh.P.M.
9. ' The appellants, on conclusion of prosecution evidence, were examined under section 342, Cr.P.C.
10. They, in their statements, denied the charge and pleaded innocence. They did not opt to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. The learned trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellants in terms above stated. Feeling dissatisfied with convictions and sentences, the appellants have come to this Court in the instant two appeals i.e,, J.Cr.A. No,885 of 2004 and Cr.A.No, 8 of 2004. The Jail Criminal Appeal, with the filing of criminal appeal, has become infructuous.
11. ' We have heard the learned counsel for the appellants, learned counsel for the State duly assisted by the learned counsel for complainant and have gone through the record with their able assistance.
12. ' The learned counsel for the appellants contended that the alleged eye-witnesses are closely related to the deceased and cannot be relied upon; empty of .30-bore was recovered from place where the presence of appellant Tahir was shown and no empty was recovered from the place of appellant Lal Mast; occurrence was the job of single accused; Sikandar and other independent witnesses, who were, present on the spot and took the dead body to the hospital, were not examined; motive was further improved in the evidence; abscondence of the appellants would not furnish any corroboration and not sufficient for conviction and the prosecution case is full of contradictions and inconsistencies.
13. ' On the other hand, the learned counsel for the State/complainant argued that the deceased was done to death right in front of his house in broad-daylight; appellants were directly charged by natural eyewitnesses; there was no motive for false implication; other eye-witnesses normally do not indulge in the affairs of others; it is always the quality of evidence and not the quantity of witnesses which matter with the Court; recoveries from the spot and medical evidence fully support the prosecution case.
14. The eye-witness, Tariq (P.W.2), who lodged the Murasila report, had reiterated the entire occurrence in Court, Mst. Papila Jan (P.W.3), another eye-witness had fully supported the complainant. Both the witnesses being natural were thoroughly cross-examined by the defence but their testimonies could not be shattered. Tariq is the nephew and Mst. Papila Jan is the widow of the deceased and undoubtedly closely related to the deceased but their relationships with the deceased are no ground for discarding their evidence; Shamshad v. State (1973 SCM R 69). The testimony of related witness can sustain conviction, if found free from doubt or infirmity; Mst. Sadiq Jan v. Muhammad Rashid (1985 SCM R 860) and corroborate with direct and circumstantial evidence of the case unless the related witnesses have motive to implicate falsely to their adversaries; Farmanullah v. Qadeem (2001 SCM R 1474). There is no evidence on the record, except the motive as set out in the F.I.R., that the deceased or eye-witnesses had any blood feud or to falsely implicate the appellants in the murder charge.
15. ' The motive for the occurrence was that 2/3 days prior to the occurrence, deceased had forbidden appellants being their neighbours to sit in front of his house for gossiping as being thoroughfare for the house's ladies but they turned the request deaf ear. It was not the mere sitting near the house but where the appellants also sold narcotics to the outsiders/criminals of the village, the regular visitors of the site. The purpose of deceased was to restrain appellants from indulging in immoral practice right at the doorstep of his house and to save his privacy for which they were annoyed and reacted in such a manner that took the life of the deceased. There was no other motive or enmity except the above. The defence had suggested that the appellants were involved at the instance of their enemies but they could not substantiate 'the suggestion with some evidence, rather the suggestion had suggested that the appellants being hardened criminals had enmities in the village. They submitted their enmity with others and gave evasive explanations when the motive was put to them in their examination under 342, Cr.P.C. No doubt the motive could never be a substitute for substantive evidence and the same by itself neither proves nor disproves any assertion conclusively; Ghalib Hussain v. Muhammad Arif (2002 SCM R 20). It becomes totally immaterial in the presence of trustworthy and reliable ocular evidence Hamid Khan v. Ashraf Shah (2002 SCM R 1155) and assumes importance, where direct evidence is impeachable and unreliable.
16. ' The learned counsel contended that the prosecution did not produce Sikander, who accompanied the dead body to the hospital and other independent inmates of the village present on the spot in Court. We have considered the contention and found legally not tenable. It is settled law that the prosecution is not bound to produce all the eye-witnesses of occurrence but only those witnesses, which are necessary and likely to give true evidence as it is always the quality of evidence having unimpeachable character and dispelling all doubts and not the quantity of witnesses which counts with the Court; Dildar Hussain v. Muhammad Afzaal alias Chala (PLD 2004 SC 663).
17. ' The witnesses of occurrence are generally refrain from joining the investigation in criminal cases and, for obvious reasons, are reluctant to appear in Court as prosecution witnesses. Their non- appearance would neither justify the Courts to draw adverse inference nor destroy the evidence of witnesses of close relatives of the deceased having no motive to falsely implicate the accused. The Hon'ble Supreme Court in Yagoob Shah v. State (PLD 1976 SC 53) had made observation regarding indifferent attitudes of eye-witnesses present on the spot at the time of occurrence in following manner; "All that we need to say that this brings to a focus to a tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings appear as witnesses particularly in murder cases. It is frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on-lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene with impunity. Not only that, these "independent" on- lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases".
18. ' Similarly in Muhammad Iqbal v. State (PLD 1976 SC 291) the Hon'ble Supreme Court had further observed; "This is unfortunate and only be understood in the context of the conditions obtaining in that part of the country where the occurrence took place, namely, the reluctance of witnesses or lack of courage on their part to depose against the assailant for fear of reprisal. This discloses a lamentable lack of civil sense and responsibility on the part of a citizen to tell the truth and to act for the benefit of the society and in aid of the authorities, charged with the duty of maintaining law and order".
19. Therefore no importance could be attached to non-production of a disinterested witness/person present on the spot and could never be fatal to the prosecution case if the related witnesses are confidence inspiriting and have no motive to implicate falsely to the innocent in criminal cases.
20. ' No doubt the empty of .30-bore was recovered from Point No,2, where the presence of appellant, Tahir-ud-Din was shown in the site-plan and no empty was recovered from the place of appellant, Lal Mast. The occurrence took place in the daylight, and on a thoroughfare the village where people of the area freely moved around. Besides, people with the report of fire shot also attracted to the spot and removed the deceased to the hospital, therefore, the possibility of empties being disappeared due to rush of people at the place of occurrence cannot be ruled out. Even otherwise non-recovery of crime empties of Kalashnikov would not play any decisive role in a case where the direct evidence of eye-witnesses E was neither disbelieved nor the investigation was suspected.
21. The contention that since the empties of pistol were recovered from one place, the occurrence could be the job of a single accused, has equally no legal force. In the post-mortem report, Exh.P.M.
22. There were five inlet wounds on the vital parts of the deceased's body, four were of the same size 1/4" and one was of 1/2" and the doctor (P.W.10) deposed that the injuries were possibly caused by different weapons. This evidence F clearly suggests that two different fire-arms of different caliber were used for the commission of offence and further P.Ws.2 and 3 in their ocular account had attributed Kalashnikov to Lal Mast and .30-bore pistol to Tahir-ud-Din.
23. ' The appellants soon after the occurrence went into hiding and despite hectic search, they could not be arrested. The warrants under section 204, Cr.P.C. Were obtained but could not be executed and returned unserved as the appellants had avoided that service of warrants. Similarly proclamation notices under section 87, Cr.P.C. Were also served but proved ineffective and ultimately Muhammad Ayub S.-I. (P.W.7) on 26-1-2003 arrested the appellants duly armed in a raid nearly after five months of the occurrence, till then they were not ready to surrender themselves before the Court or law enforcing agencies. They were provided opportunity under section 342, Cr.P.C. To explain their abscondence after the occurrence. Their explanations were that they had gone out of the village for earning livelihood and the moment they came to know about the occurrence, they surrendered themselves before the police. The appellants' replies were found false as the record revealed otherwise. They were co-villagers and the neighbours of P.Ws.2 and 3 and were in the knowledge of charge against them. The abscondence no doubt is a weak type of evidence and the same per se is not sufficient to prove the guilt and sustain conviction but it could be considered as one of the circumstances when there is sufficient evidence, direct or circumstantial, of unimpeachable character to connect the accused with the offence and in that case it would furnish corroboration to the ocular account. The appellants' abscondance was yet another circumstance, which would corroborate the ocular account furnished by the P.Ws.; Gul Khan v. State 1999 SCM R 304.
24. ' Much emphasis was put on the statement of Atta Ullah, F.C.(P.W.8-A), in order to show that the occurrence was unseen, who deposed that he had accompanied the dead body of the deceased from the spot to LMH, Kohat. We have gone through the record and found that the deposition of the above witness, on the face of it, is contradictory not only with his previous statement but also unchallenged depositions of other P.Ws. On the record. He, in his police statement dated 8-8-2002, had stated that he along with Amal Khan A.S.-I. (P.W.8) was present in the LMH, Kohat. Amal Khan prepared the death documents of the deceased and left the dead body with him in the hospital.
25. The doctor conducted the autopsy, handed over the dead body to the legal heirs and the PM- report along with the deceased's blood-stained garments to him, which he handed over to the Investigating Officer. Amal Khan in his deposition had confirmed what the above witness had stated in the police statement. The prosecutor did not confront the above witness with his previous statement and as a result of his omission, the concession extended to the appellants by the above witness remained unchecked. The Hon'ble Supreme Court, while agreeing with the observations of one of the learned Judge of this Court in Sikandar Shah v. State (PLD 1965 Peshawar 134) that the obliging concession made by a formal witness such as police constables cannot be of any value and hope that I the Provincial Government will take steps to check such propensities on the part of their own subordinate police constables;. Bagu v. State PLD 1972 SC 77. The learned counsel also stressed upon the statement of Mst. Papila Jan (P.W.3), who deposed that she had lodged the report in LMH, Kohat and thumb-impressed the same. Amal Khan, A.S.-I. (P.W.8) had deposed that he had recorded the Murasila on the report of Tariq (P.W.2). Tariq's report made consistent deposition with P.W.8 in Court. The defence did not cross-examine P.W.3 except for a suggestion that Mst. Papila Jan had lodged the report in the police station wherein none was charged for the occurrence and that too was denied. Her deposition was recorded after fourteen months of the occurrence and she being illiterate and rustic villager had considered her statement to the Investigation Officer as First Information Report. There is no inconsistency between the statements of P.Ws.2 and 3 regarding narration of occurrence in Court and the same could not be helpful to the defence in any manner.
26. ' Besides, the learned counsel half-heartedly assailed the improvement of motive, P.Ws.
27. Introduction of criminals etc. Visiting the site of occurrence, sale of narcotics by appellants outside the house, medical report contradicting ocular account etc. These inconsistencies are neither material nor of any consequence and could not be made grounds for creating doubt and securing acquittal. The Hon'ble Supreme Court in Allah Bakhsh v. Ahmed Din 1971 SCM R 462 had observed that "minor inconsistency in depositions of prosecution witnesses of inconsequential nature cannot reasonably be considered as good ground in disbelieving independent and disinterested witnesses. If importance be given to such insignificant inconsistencies there can hardly be any conviction, for seldom is there a witness whose evidence does not suffer from such inconsistencies".
28. ' For the foregoing reasons, we are of the view that the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court has appraised the evidence existing on the record thoroughly on the principles for appraisal of evidence in criminal cases for safe administration of criminal justice. The judgment is based on correct application of law and proper evaluation of evidence and, therefore, we see no reason to interfere in the findings of the learned trial Court.
29. Consequently, this appeal having no merit is hereby dismissed. However, benefit of section 382-B, Cr.P.C. Awarded to the appellant shall remain intact.