Muhammad Nawaz Abbasi, J.--This Criminal petition has been directed against the judgment dated 12.4.2005 passed by a Division Bench of the Peshawar High Court, Abbottabad Bench whereby the appeal filed by the petitioner against the conviction and sentence of life imprisonment with fine of Rs. 100000/-, half of which was payable to the legal heirs of the deceased as compensation, awarded to him by the Sessions Judge/Zila Qazi Kohistan, under Section 302(b)
PPC was dismissed.
2. The brief facts of the prosecution case as contained in the statement of Gul Khan, brother of Gul Shahzada, deceased, recorded by the SHO of Police Station, Pattan, at the house of deceased on the day of occurrence, on the basis of;which case was registered against the petitioner for the murder of deceased, are that on 4.11.2001 at 9,00 a.m. when deceased, alongwith his wife Mst.
Begum Jan, minor daughters son Ghulab and a close relative Gulbar Khan son of Haji Abdul Karim, were proceeding towards village Pattan, from their village Shamal Gullo, the petitioner being armed with Kalashnikov, suddenly confronting them inquired from the deceased that where he was going without return of his money and on reply of the deceased that the matter would be settled in accordance with Shariah, the petitioner opened firing as a result of which, deceased having sustained injuries died at the spot. The dead body of Gul Shahzada, was taken to his house and meanwhile SHO of Police Station Pattan, on receipt of information about the occurrence reaching at the house of deceased, recorded the statement of Gul Khan and prepared the injury statement as well as inquest report of the deceased. The complainant and family members of the deceased, did not permit the despatch of dead body for the postmortem of the deceased and consequently, the dead body was buried without postmortem. The investigating officer having taken into possession three crime empties of 7.62 bore rifle and blood stained earth from the place of occurrence, sent these articles in sealed parcels, alongwith blood stained shirt of deceased, to the forensic science laboratory for examination and on completion of the investigation, challaned the petitioner to face the trial.
3.The prosecution in addition to the two eye-witnesses namely Gul Bahar Khan (PW-3) and Gulab Khan (PW-2) also produced Gul Khan (PW-1) complainant of the case, Amir Alam (PW-4), who wis the marginal witness of the recovery memos. Muhammad Yasin (PW-5), Muhammad Salim Shirwani, SHO (PW-6), Said Rehman (PW-7) and Ghulam Muhammad (PW-8) who remained associated with the investigation. The petitioner in his statement under Section 342 Cr.P.C. denied - Lae charge and pleaded false implication due to suspicion.
4.Learned counsel for the petitioner, in support of this petition, has contended that the deceased was murdered on a path leading to village Patten in presence of Ghulab Khan, his son. Gulbar Khan son of real sister of appellant and Mst. Jan Begum, wife of deceased, and all these witnesses were also present at the house of deceased at the time of arrival of SHO, but the case was registered on the basis of statement of Gul Khan who was not an eye-witness therefore, his evidence being hearsay, was to admissible. The learned counsel next argued that non-production of Mst. Jan Begum wife of deceased, who was most natural and important witness, would seriously reflect upon the claim of Ghulab Khan and Gulbar Khan of having seen the occurrence and the correctness of prosecution version. Learned counsel also argued that delay in registration of the case coupled with the attending circumstances, would lead to a strong inference that it was an unseen occurrence and petitioner due to suspicion was substituted for unknown culprit. Learned counsel pointing out the minor discrepancies and contradictions in the prosecution evidence, submitted that the charge against the petitioner was not proved beyond reasonable doubt and High Court without fallowing the settled rule of appreciation of evidence and application of independent mind, affirmed the finding of the trial Court regarding the guilt of the petitioner in a mechanical manner.
5. The deceased was fired at while he was going on a kacha path leading to village Pattan at a distance of about two kilometers from his house and it being hilly area, the dead body was brought on foot to the house of deceased consuming about three houses and before the matter could be reported to the police, the SHO of the concerned police station, on coming to know about the occurrence, of his own, reached at the house of deceased and recorded the statement of Gul Khan (complainant), real brother of deceased on the basis of which case was registered, therefore, in these circumstances, delay in the registration of case, would be of no significance. The complainant certainly was not an eye-witness but this is not necessary that case must be registered on the basis of information to be given by a person having direct knowledge of occurrence rather law can be set at motion by any person. This may be pointed out that First Information Report is not substantive evidence and statement of first informant, who is not an eyewitness can not be treated at par to the direct evidence of an eye-witness but the same may be used as corroborative evidence. In the present case, Gul Khan, real brother of deceased on the basis of information given to him by the eye-witnesses namely Gulab Khan and Gulbar Khan who have furnished the ocular account made a statement before the SHO for registration of case and eye-witnesses in their statements having acknowledged the factual position narrated in the statement of complainant, affirmed the story of FIR to be correct. The complainant and eye- witnesses are closely related to the deceased as well as to the petitioner and being not inimical towards the petitioner, were quite independent and truthful. The presence of the eyewitnesses at the spot while proceeding in the company of deceased, was beyond doubt and their testimony being confidence inspiring, would alone be sufficient to sustain the conviction. The contention of the learned counsel that without postmortem examination of the deceased, the cause of death being not ascertainable, the charge of murder could not be proved only on the basis of oral testimony of the eye-witnesses, may be relevant in a case in which in absence of medical evidence it is not possible to determine the real cause of death. The medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of offence, therefore, if the charge of murder is otherwise proved through the direct evidence, the absence of medical evidence may not be fatal. In the present case, the eye- witnesses, without any exaggeration or improvement, have consistently stated that petitioner armed with Kalashnikou, fired at the deceased as a result of which he having sustained injuries, died at the spot and the ocular account to this extent, stood corroborated by the recovery of three empties of 7.62 rifle from the place of occurrence and the factum of sustaining of fire-arm injuries by the deceased mentioned in the injury statement and inquest report prepared by the investigating officer on the inspection of dead body at the house of deceased. This is in the evidence of SHO that dead body was not sent for postmortem examination because the complainant party was not prepared to permit the postmortem examination of the deceased and in these circumstances, the homicidal, death having been proved by the direct evidence of most natural and quite independent witnesses, the non-availability of medical evidence would be of no consequence. The, trial. Court as well as the High Court having found the testimony of the eye- witnesses, truthful and reliable, have concurrently held the petitioner guilty of the charge and we having perused the record with the help of learned counsel for the parties, have not been able to find out any defect of misreading or non reading of evidence or misappreciation of evidence, calling for interference of this Court and consequently, we would take no exception to the conclusion of the evidence drawabythe two Courts and uphold the judgment of the High Court.
6. In the light of forgoing discussion, we find no substance in this petition and same is accordingly dismissed. Leave is refused.