ljaz-ul-Hassan Khan, J.--Appellant Javed Shah son of Yaqoob Shah, aged about 32 years resident of Bahader Kalay, District Peshawar, was tried by learned Additional Sessions Judge, Peshawar, under Section 302/34, P.P.C. for the charge that he, in furtherance of his common intention with his cousin Sofaid Shah, absconding co-accused, at 1900 hours on 22-6-1986 near the land of Abdul Jabbar, distant 4/5 kilometers from Police Station Bhana Mari, Peshawar, committed "Qatal-i-Amd" of his co-villager Habib Khan deceased, a young boy of 17/18 years of age. The learned trial Judge on the conclusion of trial, vide judgment dated 11-5-2004, having found the appellant guilty of the murder in question, convicted him under Section 302(b), P.P.C. and sentenced him to suffer 25 years' R.I. and fine of Rs. 1,50,000 as compensation payable to the legal heirs of deceased or in default to undergo six months' S.I. The benefit admissible under Section 382-B, Cr.P.C. was; however, extended to him.
2. Appellant Javed Shah, feeling aggrieved by the impugned judgment, has challenged the same through Criminal Appeal No. 439 of 2004, whereas complainant Aurangzeb has filed Criminal Revision No. 123 of 2004, for enhancement in sentence of appellant and the amount of compensation. This judgment shall dispose of both the matters.
3. The prosecution story in brief is, that on the day of occurrence i.e. 22.6.1986, at about 1900 hours, complainant Aurangzeb (P.W.7) alongwith his brother Habib Khan deceased and cousin Mahboob Khan, was going towards ''Bara Khwar". When they reached near bank of the Khwar, they found Javed Shah accused and Imam Shah absconding co-accused present there duly armed. On confrontation they started firing with pistols at Habib Khan deceased, as a result of which Habib Khan was hit, fell on the ground and died instantaneously.
4. Explaining the motive, it was disclosed that deceased had developed intimacy with one Iftikhar of his village and used to spend time in his company, which caused annoyance to the accused and they were on a look to take life of the deceased.
5. Siraj Muhammad (P.W.8), the then S.H.O. Police Station Bhana Mari, Peshawar, on receipt of information regarding the occurrence,.proceeded to the spot, drafted the "Muralisa" Exh.P.A./1 at the instance, of complainant Aurangzeb (P.W.7) and sent the same to Police Station Bhana Mari, wherein it was incorporated into F.I.R. Exh.P.A. by A.S.-I. Taj Muhammad Khan (P.W.4). The witness in hand prepared injury sheet Exh.P.M./1 and inquest report Exh.P.M./2 of the deceased and referred the dead body to the hospital for post-mortem examination. He prepared site-plan Exh.P.B. with all its foot notes and sketches at the pointation of complainant and eye-witnesses. He recovered blood-stained earth from the spot and sealed the same into parcel vide recovery memo. Exh.P.C. in the presence of marginal witnesses. He also recorded statements of prosecution witnesses. On return from the hospital, F.C. Afsar Khan (P.W.5), brought the last-worn clothes of the deceased and a spent bullet and handed over the same to the Investigating Officer. These articles were scaled into parcel and sent for analization. The report of Exh.P Z. was placed on the file. As the accused were not traceable, he applied for warrants under Section 204, Cr.P.C. an proclamation under Section 87, Cr.P.C. thereof and entrusted the same to F.C. Said Rasool (P.W.9) for execution After completion of investigation, challan under Section 512, Cr.P.C. was submitted against the accused.
6. During the trial, the prosecution produced 9 witnesses in support of its case against the appellant and his co-accused, Dr. Sajid Shaheed (P.W.3), on 23-6-1986, at about 7-15 a.m., conducted post mortem examination on the dead body of, Habib Khan deceased and found the following:--
(1) Fire-arm lacerated wound 1" x 1" on the posterior surface of the left upper arm 3-1/3" above the elbow.
(2) Fire-arm entry wound 1/4" x 1/4" on the left back 2" from the mid axillary line and 6" below the left axial in line with wound No. 1. Charring was also present in wound No. 1.
(3) Fire-arm grazing wound 1" x 1/2" on the left chest, 3" from the midline and 2" below the clavical.
(4) Fire-arm grazing wound 1/2" x 1/2" on height chest 1/3" from the midline and 2" below the right clavical.
Time between injury and death was instantaneous and between death and post-mortem examination was about 10 to 14 hours.
7. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He, however, opted not to make statement on oath under Section 340(2), Cr.P.C. and did not produce any evidence in his defence.
8. At the conclusion of trial, Mr. Muhammad Younas, Additional Sessions Judge, Peshawar, after hearing arguments of learned counsel for the parties, with reference to the material on record, found the appellant guilty of the murder in question and convicted and sentenced him through the impugned judgment, as mentioned and detailed above.
9. Addressing argument on behalf of the appellants. Miss Farhana Marwat, Advocate vehemently contended that prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt by producing independent evidence. The only eyewitness produced during the trial is brother of the deceased as such, an interested witness and his evidence alone is not sufficient to sustain conviction without independent corroboration which is lacking in the case. She added that the complainant could not give any plausible explanation for his being present at the spot at the relevant time. The learned counsel also contended that trial Court failed to appreciate the fact that no empty has been recovered from the site of occurrence, which is clearly indicative of the fact that the occurrence had not taken place in the manner as alleged. The learned counsel further submitted that the F.I.R. was lodged with unexplained delay of about two hours, though the place of occurrence was situated at a distance of 5/6 kilometers from the police station. and it appears that the time was consumed by the complainant party in deliberation and consultation.
Concluding the arguments, the learned counsel maintained that the evidence produced by the prosecution is pregnant with serious infirmities and flaws and abscondence would not furnish any corroboration and not sufficient for conviction. In support of the submissions, reliance was placed on Mst. Mumtaz Begum v. Ghulam Farid and another 2003 SCM R 647.
10.On the contrary, Miss Neelam A. Khan, Advocate, appearing on behalf of the State assisted by Mr. Asadullah Khan Chamkani, Advocate for the complainant, contended that judgment of learned trial Court to the extent of not awarding normal penalty of death to the accused-respondent is against law, facts and evidence on record; that the learned trial Court after believing the prosecution evidence and holding the accused-respondent guilty of murder' of Habib Khan deceased, had no justifiable reason to take lenient view and award lesser punishment to accused- respondent and that the compensation awarded in this case is inadequate and hardly meets the ends of justice.
11. Having analyzed the entire prosecution evidence and attending to the submissions made by learned counsel for the parties, we find that the case of the prosecution mainly depends on the evidence of complainant Aurangzeb (P.W.7), who is designated as the sole eyewitness of the occurrence. We have critically analyzed the statement of the complainant and we find that he has faithfully deposed what was seen by him. This witness being natural was thoroughly cross- examined by the defence but his testimony could not be shattered. He is undoubtedly closely related to the deceased, but his relationship with the deceased is no ground for discarding his evidence. The testimony of related witness can sustain conviction. If found free from doubt or infirmity. Needless to emphasize that the testimony of a solitary witness by itself, is not a demerit or disqualification as can call for its repudiation when otherwise it rings true and inspire confidence.
The argument of the learned counsel for the appellant that this witness being inimical to the appellant and highly interested cannot be relied upon, is not tenable, both legally and logically in the absence of any defect in its intrinsic probative-worth and in the absence of any motive on his part to falsely implicate the appellant. It is now well-settled principle of law that conviction can be based on the statement of solitary eye-witness provided the same is confidence inspiring, rings true and satisfies the conscience of the Court. The Courts have always given emphasis on the quality of evidence having unimpeachable character and dispelling all doubts and not the quantity of the witnesses. 1971 SCM R 273, 1995 SCMR 1979, 2001 SCMR li7 and PLD 2004 SC 663.
12.Adverting to the motive, leading to the incident, it has come in evidence that deceased Habib Khan had friendly relations with his co villager Iftikhar, on account of which the accused were nursing grudge against him and were on a look for an opportunity to take his life. The motive has been satisfactorily established through the deposition of the complainant. The Submission of the learned counsel for the appellant that prosecution has failed to prove motive, is misconceived.
13. This is a settled principle of criminal law that absence or weakness of motive is not a valid ground to disbelieve the eye-witness account if otherwise it is found independent and confidence inspiring. Learned counsel for the appellant has not been able to convince us that either the ocular account was not truthful or appellant was substituted for unknown culprit due to the enmity It may be seen that substitution is rare phenomenon whereas the enmity is considered double-edged weapon but since the motive is not an essential ingredient for the crime, therefore, its absence or weakness may not reflect upon the direct evidence. In the present case, we find that the evidence of eye-witness seeking substantial corroboration, would sufficiently establish the charge of murder against the appellant and learned counsel has not been able to point out anything material to suggest even a slight doubt vis-a-vis his guilt.
14.The appellant and absconding co-accused soon after the occurrence went into hiding and despite hectic search, he could not be arrested. The warrant under Section 204, Cr.P.C. were obtained but could not be executed and returned unserved as the appellant had avoided that service of warrant. Similarly proclamation under Section 87, Cr.P.C. was also served but proved ineffective and ultimately appellant was arrested on 20-5-2000, after more than 14 years of the occurrence, till then he was not ready to surrender himself before the Court or law enforcing agencies. He was provided opportunity under Section 342, Cr.P.C. to explain his abscondence after the occurrence. His explanation was that he had gone to Karachi to earn livelihood. The appellant's reply was found false as the record revealed otherwise. 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 he 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. It is recognized principle of criminal administration of justice that when an accused remains absconding after commission of the offence an adverse inference is drawn against him to the effect that because he has committed an offence, therefore, to hamper the process of investigation of the case he absconded himself because if an accused considers himself to be innocent he instead of defying the law would surrender himself before 'the law enforcing agencies or the judicial authorities.
15. The learned counsel for the appellant contended that there were some serious lapses in the process of investigation, which had vitiated the trial. However, he has not been able to point any so-called E serious defects in the investigation, other than certain minor lapses which do not affect the validity of the trial.
16. Having adjudged the matter from all angles, we find that the appellant stands directly nominated in the promptly lodged report for commission of crime, medical evidence fully corroborates the prosecution story and mere fact that no empty has been recovered from the spot and no weapon has been recovered from possession of the appellant, is not fatal to the prosecution. The prosecution has produced credible and legal evidence to associate the appellant with the guilt and he has been rightly convicted and sentenced by the trial Court. The findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence.
The impugned judgment is based on correct application of law and proper evaluation of evidence.
The defence has miserably failed to extract any material discrepancies or contradictions from the statement of the sole eye-witness. Consequently, the appeal fails, which is hereby dismissed and the impugned judgment is maintained and upheld.
Adverting to Criminal Revision No. 123 of 2004, we find that learned trial Judge has advanced cogent reasons for taking lenient view in the matter and declined to award death penalty to the appellant. The amount of compensation awarded to the legal heirs of deceased is also appropriate and warrants no interference. The criminal revision also stands dismissed.