' IJAZ-UL-HASSAN KHAN, J- This judgment will dispose of Criminal Appeal No,53 of 2006, filed by Hanif Khan, appellant and Murder Reference No,l of 2006, for confirmation or otherwise of death sentence, sent by the trial Court as required under section 374, Cr.P.C. As these arise out of the same judgment dated 11-5-2006, recorded by learned Sessions Judge, Lakki Marwat, whereby the appellant, having been found guilty for the murder of his co-villager. Mst. Shah Pari, a girl of 16/17 years of age, was convicted under section 302(b), P.P.C. And sentenced to suffer death.
2. The crime in question is alleged to have taken place on the night of 29-5-1998 at about 'Sehri vela' i.e, 3-30 a.Hi. In the house of Maazullah, father of the deceased, on deh Kaka Khel, at a distance of about 4/5 K.Ms. From Police Station, Ghazni Khel, while the matter was reported by Mst.
Jehana complainant to the police on the following morning at 6-30 a.m. And formal F.I.R. Exh.C.W.
1/1 was recorded by C.W. Nek Nawaz, the then S.H.O. Police Station, Ghazni Khel.
3. The facts of the case as mentioned in the F.I.R. Are, that on the night of occurrence Mst. Jehana (P.W.9) complainant and her daughters Mst. Shah Pari (deceased) and Mst. Farangai (P.W.10) were asleep in the courtyard of their house when at about 'Sehri vela' on hearing the hue and cry of Mst.
Shah Pari deceased, they woke up and found that Nawab Khan son of Haq Nawaz, Munir Khan and Shah Nawaz sons of Muhammad Nawaz, empty-handed, were catching hold of the deceased and dragging her towards wall, whereas Hanif Khan (appellant) and Sharif, sons of Haq Nawaz, duly armed with D.B. Shotguns were standing nearby. During the process, Hanif Khan at the instance of Sharif Khan, co-accused fired at Shah Pari deceased, as a result of which she was hit, fell on the ground and died at the spot. After accomplishing the mission, accused persons made good their escape. The motive leading to the incident, was stated to be previous enmity between the two families.
4. S.H.O., Nek Nawaz Khan, after recording the F.I.R., Exh.C.W.. l./l, inspected the dead body of Mst.
Shah Pari deceased, prepared inquest report Exh.C.W. 1/2 and injury sheet Exh.C.W. 1/3 of the deceased and dispatched the dead body to RHC Titer Khel, for post-mortem examination, under the control of FC Moenuddin (P.W.8). He entrusted the remaining investigation to S.H.O., Haq Nawaz (P.W.2). He went to the spot, prepared site-plan Exh.P.B. At the instance of eye-witnesses, recovered blood-stained earth from the spot, vide memo. Exh.P.W.2/2 and one electric bulb of 100 watts P.2, installed in front of the room of the courtyard along with a ladder P.3, vide memo. Exh.P.W.2/3. He also took into possession, last-worn clothes of the deceased, vide memo. Exh.P.W.2/4 and dispatched the same to FSL Peshawar and placed on record, report Exh.P.W.2/6. S.H.O., Bakht Jamal (P.W.4), on 23-9-2004, arrested accused Hanif Khan when he appeared and surrendered before him. S.-I. Mir Alam (P.W.6) on completion of investigation, submitted complete challan against the accused in Court on 3-9-1998.
5. It may be pertinently mentioned here that brothers and nephews of the appellant were also arrested and tried for the said charge. Co-accused Munir Khan and Sher Nawaz were acquitted, vide order dated 27-2-2006, whereas Muhammad Sharif was tried separately and acquitted vide order dated 8-12T2003. Proceedings against Nawaz Khan accused were abated on- account of his death.
6. After having completed usual formalities and investigation of the case, the police submitted challan against the accused before the Court of competent jurisdiction, where, in order to prove its case, the prosecution examined as many as 11 witnesses, including Mst. Jehana (P.W.9) complainant and her daughter Mst. Farangai (P.W.IO), who furnished the eyewitness account of the occurrence and charged the appellant for firing, resulting into the murder of the deceased Mst.
Shah Pari. The medical evidence was provided by Dr. Akbar Khan (P.W.3), Senior Medical Officer, D.H.Q., Hospital, Lakki Marwat, who on 29-5-1998 at 8-00 a.m, conducted post-mortem examination on the dead body of the deceased and noted one entrance wound size 1" x 1" on the back of left chest, medial to scapula or irregular margin, skin muscles cavity deep.
7. The appellant in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. He neither appeared as his own witness on oath as required under section 240(2), Cr.P.C. Nor produced any evidence in defence.
8. The learned trial Judge on over all A assessm ent of the evidence, convicted and sentenced the appellant as mentioned and detailed above, concluding that the prosecution was successful in proving the; guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned trial Court accepted the evidence furnished by the complainant and her daughter Mst. Farangai P.Ws., corroborated by medical evidence, motive set up by the prosecution and abscondence of the accused.
9. Representing the appellant, Mr. Sanaullah Gandapur, Advocate contended, inter alia, that it is a night occurrence and delayed report makes it further a doubtful affair; that co-accused of. The appellant, namely Munir Khan, Sher Nawaz Khan and Muhammad Sharif were extended the benefit of doubt and acquitted from the case but the same benefit was not given to the appellant; that there is no corroborative evidence coming from independent source to lend corroboration to the testimony of alleged eye-witnesses; that the eyewitnesses are closely related to the deceased and no efforts were made to procure independent and impartial evidence; that there are material contradictions in the statements of eye-witnesses, which make their presence at the spot highly doubtful; that the ocular account is in direct conflict with medical evidence; that there was no motive for the appellant to kill the deceased; that recovery of electric bulb is fake; that learned trial Judge advanced very flimsy grounds to justify involvement of the appellant; that the alleged abscondence of the appellant has not been proved in accordance with law through reliable evidence and that the impugned judgment has been passed against the weight of evidence on record and in the afore- referred circumstances, appellant is entitled to be acquitted from this Court. To substantiate the contentions, reliance was placed on Mehmood Ahmad and 2 others V.
State 1995 SCM R 127; Muhammad Tayyab v. Akbar Hussain 1995 SCM R 73, Amir Shah v. Federal Government and 2 others PLD 1986 Peshawar 195, Riaz Masih alias Mithoo v. The. State 1995 SCM R 1730; Basharat and another v. The State 1995 SCM R 1735, Jan Alam v. The State and another 2004 PCr.LJ 68, Saleh Muhammad v. The State and another PLD 2006 Peshawar 132, Naik Muhammad alias Noata v. The State 1996 SCM R 317, Tariq Khan v. The State 1997 SCM R 254, Sheral alias Sher Muhammad v. The State 1999 SCM R 697 and Muhammad Tariq v. The State 2004 SCM R 783.
10. Chaudhary Muhammad Sharif, learned D.A.-G. For the State assisted by Mr. Salimullah Ranazia Advocate for the complainant, on the contrary, defended the impugned judgment and maintained that the eye-witness account of the incident rendered by the complainant and her daughter is consistent and fully supported by the medical evidence; that the motive set up by the prosecution against the appellant stood proved on the record; that after the occurrence, appellant disappeared from the village and remained fugitive from law for more than six years and in view of above facts and circumstances of the case the appeal merits outright dismissal.
11. Contentions of the learned counsel for the parties have been heard at length in the light of the material on record and the case-law cited at the bar.
12. The ocular account of the occurrence stands furnished through the testimony of Mst. Jehana and Mst. Farangai P.Ws. Both these witnesses attributed the role, of firing to the appellant, resulting in the murder of Mst. Shah Pari deceased. Both the witnesses have supported the prosecution case and demonstrated complete unanimity on all important features of the case. The statements of above witnesses correspond to each other. It would be seen that there is consistency in their evidence. There are, of course, some minor discrepancies coming on record during cross- examination of the witnesses but the same being of minor character, can hardly be considered sufficient to discard or disbelieve their version. The question regarding discrepancies in the statements of prosecution witnesses has although been raised by learned counsel for the appellant but he remained unable to pick up or point out any discrepancy worth the name. The contention of learned counsel for the appellant that prosecution witnesses are inter se related to the deceased, hence their evidence cannot be relied upon, is without substance. Relationship of the prosecution witnesses with the deceased or the complainant is no criteria for discarding their evidence, when they are found to have given trustworthy and confidence-inspiring account of the incident.
13. The contention of learned counsel for the appellant that evidence concerning co-accused has been disbelieved, whereas same set of evidence has been believed and made basis of conviction of the appellant, is equally devoid of force. The acquitted coaccused have been ascribed distinguishable role qua the appellant. We fail to understand as to how learned counsel for the appellant expects us to treat the case of the appellant at par with acquitted coaccused and extend him the benefit of doubt, keeping in view the principle of consistency. The acquittal of co- accused does not detract the credibility of ocular account provided by complainant and her daughter.
14. As far as the contention of the learned counsel for the appellant that F.I.R. Is lodged after delay of about six hours of the occurrence although the police station was just 4/5 K.Ms. Away from the scene of occurrence is concerned, it hardly affects merits and truthfulness of the case as reasonable explanation has been furnished by the complainant. The crime is committed at the dead of the night inside the house. The accused persons are residents of the same locality. The complainant stated that due to fear of the accused, she could not go to police station in time to make report. The explanation offered by the complainant is plausible and appears compatible with the human behaviour. Hence this ground does not create any dent in the prosecution case.
15. Apart from above, the ocular account is fully corroborated by the medical evidence. The medical examination of the deceased reveals that she had received a single entrance, wound on the back of her left chest medial to scapula skin muscle cavity deep and pellets and car board were recovered from the injury.
16. C D E The prosecution case is further corroborated by absconsion of the appellant. The occurrence having taken place on 25-9-1998, appellant was arrested on 23-9-2004. The appellant remained absconder for about six years and proceedings under sections 204/87, Cr.P.C. Were duly complied against him. The explanation offered by the appellant in his statement under section 342, Cr.P.C. Is that he did not abscond and at the relevant time he was in Punjab in connection with labour.
Neither any defence witness was examined nor any record was produced to show that he was in Punjab and, as such, his explanation goes unsubstantiated. Thus, it could be justifiably believed that he absconded himself after the occurrence. The absconsion on the, part of the appellant is a corroborative piece of evidence in circumstance of the case. 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 other circumstances of the case. In the instant case, abscondence when read with the ocular account and other circumstantial evidence, leaves no doubt for us to consider it a circumstance incompatible with the innocence of the appellant and it provides the necessary corroboration.
17. Having considered the matter from all angles, we have no doubt in our mind regarding commission of the offence by .The appellant but at the same time, in our firmed view, it is not a case of capital punishment because it has come on record that the appellant acted under the command of Sharif Khan, acquitted co-accused and fired a single shot at the deceased and did not repeat his act. Resultantly, while considering the said factor as a mitigating circumstance and while maintaining the conviction and sentence of the appellant under section 302(b), P.P.C., we convert his sentence into life imprisonment with benefit of section 382-B,. Cr.P.C. The learned trial Judge has not awarded compensation in this Case. The appellant shall pay compensation of Rs, 1,00,000 to legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default to undergo one year S.I.
' For the aforesaid reasons, murder reference is answered in the negative. Criminal Appeal filed by Hanif Khan is dismissed with the modification mentioned above.