' SYED YAHYA ZAHID GILANI, J.--- This is a criminal jail appeal filed by Khairullah, convicted by Mr. Aymon Zia, learned Sessions Judge, Bannu vide his judgmeut dated 10-5-2005 and sentenced to suffer life imprisonment and pay Rs,2,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased.
2. According to the prosecution case, the complainant Hukam Khan P.W.7/eye-witness and Aqal Khan (deceased) are uterine brothers, On 4-6-2002 at 1230 hours, they arrived in the street of their Baithak after shopping of household articles. Aqal Khan entered in the courtyard of Baithak and Hukam Khan was following him at a distance of about 17 paces when the convict-appellant Khairullah emerged with .12 bore pistol who fired at the deceased and killed him. The complainant stated that he is unaware about the motive. The report was registered at Police Station Domail vide F.I.R. No,69 dated, 4-6-2002, under section 302, P.P.C., at 1330 hours,
3. The Investigating Agency activated. Site plan Exh.P.B. Was prepared, blood-stained earth was recovered from the spot vide memo. Exh.P.R. And two pellets vide memo. Exh.P.R./1. The garments of the deceased and five pellets recovered from his body, sent by the doctor, were received vide memo. Exh.P.R./2. The F.S.L. Report Exh.P.K. Conveyed that the blood recovered from the spot and that on the garments of the deceased was of human origin and of the same group. The accused Khairullah was arrested after one year and three months abscondence and thereafter his trial commenced which culminated into the above mentioned conviction.
4. We have heard arguments of learned counsel for the parties and have gone through the record in detail.
5. Learned counsel for the convict-appellant argued that Police Station is at a distance of two furlongs and report has been lodged with the delay of one hour which is inordinate. It was unwitnessed occurrence. The statement of complainant pertaining to mode and manner of commission of offence has not been corroborated by the circumstantial and medical evidence.
Recovery of pellets from point-A in the site-plan was not possible in the deposed manner of commission of crime. In the site-plan, the place of accused has been shown at point 3 which is outside the Baithak area but in the statement, the eye-witness stated that the convict-appellant killed the deceased after entering in the Baithak area. The complainant is a single witness and also closely related to deceased, therefom placing reliance on him in a case of capital charge is not safe, especially because the motive remained shrouded in mystery till the end of trial. The convict- appellant has been falsely charged on the basis of suspicion and he is entitled to acquittal on the basis of benefit of doubt.
6. Conversely, learned counsel for the complainant and the learned State counsel vehemently argued that it is a case of day light occurrence. The presence of deceased in the Baithak is obvious and the presence of his brother at the spot is natural because they reside in the same vicinity and being brothers, their joint arrival from market and presence on the spot is not abnormal. If there is short delay in lodging report, it has been well explained and attributed to womenfolk, yelling in protest. A single accused has been charged. There is no reason, for his false implication or substitution. The statement of eye-witness is fully supported by circumstantial and medical evidence on all material particulars providing sufficient material for reliance and conviction of the convict-appellant. They requested that the appeal may be dismissed.
7. First of all we shall deal with the alleged delay in lodging report. No doubt, the Police Station is at a distance of two furlongs from the place of occurrence but it cannot be said that the time of occurrence, being 1230 hours, the report. Was lodged at 1330 hours with a delay of one hour because in a sudden incident of Qatl-e-Amd we must keep in mind that the time consumed in initial state of shock, arrangement for shifting the dead body to Police Station and the time consumed in covering the distance of two furlongs, shall have to be excluded from the total time gap in between the time of occurrence and report. Additionally, it has been explained that due to this unexpected incident, the womenfolk of the family raised hue and cries and some of the time was also consumed in pacifying them. This ground reality can also be not overlooked which can be expected, as the incident took place at the dwelling place. Therefore, we conclude that the report lodged in this case within one hour is not a delayed report.
8. The report having been lodged with promptitude, the name of convict-appellant is specifically mentioned in the F.I.R., coupled with the clear mention that .12 bore pistol was used. The two pellets recovered from the spot and five from the body of deceased fully corroborate the use of .12 bore pistol. The argument, that two pellets could not be present at point "A" shown in the site-plan, is of no consequence because point "A" is at a distance of two paces from point 2 where the deceased was hit and it is also in evidence that people were attracted to the spot along with womenfolk and thus the location of pellets could change due to their foot steps. The deceased was done away on the spot shown by the eye-witness because the blood on his garments is of the same group as per F.S.L. Report Exh.P.K. Which is of the blood-stained earth recovered from point 2 in the site plan Exh.
P.B .
9. Much was argued to create doubt in the case with reference to non-disclosure of motive but we do not think that it is detrimental to prosecution case, simply because the complainant Hukam Khan P.W.7 has given a very straightforward statement that he does not know the motive. The defence could also not bring on record any motive for false charge or animosity and of any kind in between accused and Hukam Khan complainant, showing reasonable ground to believe that he has been falsely nominated. Although at a very late stage, the accused has stated in his statement under section 342, Cr.P.C. That he has been falsely charged on the instigation of Noor Hakim Shah and Amirullah, the nearest `Tarboors' of the deceased, due to rivalry with them over selling of Chars, but this assertion is not getting support from any other source and seems to be a lame excuse. In cross-examination, complainant P.W.7 has explained that the accused was known to him because he had lived in the village for some time. Since the occurrence took place in day light, there is no question of misidentification nor any reason for substitution of the actual culprit.
10. Much was argued for the convict-appellant that the presence of eye-witness on the spot is not proved beyond doubt, but this is also not convincing argument. The complainant/eye-witness is not an interested and inimical witness because he has no motive to falsely charge the convict- appellant. His statement is getting support and corroboration from the medical as well as circumstantial evidence because the injury on the body of deceased is clearly of .12 bore weapon and the pellets have also been recovered from the spot and the dead body. Furthermore, the postmortem was carried out at 2-30 p.m. On 4-6-2002 and according to the opinion of Medical Officer, time between death and post-mortem could be 2-06 hours, If the minimum time of two hours is subtracted from 2-30 p.m., then the time of occurrence is exactly 1230 hours, as expressed by the eye-witness. As such the time of occurrence alleged by the eye-witness is fully corroborated by the opinion of Medical Officer.
' Similarly, the time shown by the Medical Officer in between injury and death is 5-30 minutes. True, that the witness said that on his arrival near the victim, he was found dead but this is not a wrong statement, keeping in view the inlet wound in the middle of chest and exit wound on back of the deceased which must have caused immediate shock and the complainant, being not expert, could at that time feel that the victim had died, who actually died within minutes as per doctor's opinion.
This aspect of the case also corroborates the testimony of eye-witness. Over and above is the long noticeable and unexplained abscondence of the accused comprising one year and three months which has been proved by p the statement of Saadullah P.W.5 coupled with the warrants Exh.P.W.5/1, and proclamation notice Exh.P.W.5/2. This is a case of single accused in which substitution is always very rare, and it is not visible in this case.
11. It has been held by Honourable apex Court in a very recent judgment delivered in the case of Ijaz Ahmad v. The State 2009 SCM R 99 that related witnesses some time, particularly in murder cases, may be found very reliable because they, on account of their relationship with the deceased, would not let go the real culprit nor substitute an innocent person for him. It has been reiterated in this reported case that the need of corroboration is only a rule of prudence which in the present case before us, is sufficiently available, as discussed above.
12. We, therefore, safely conclude that the prosecution has been able to prove its case against the convict-appellant beyond shadow of doubt. The conviction and sentence both are upheld because due to absence of proof of motive, the sentence of life imprisonment, coupled with the amount of compensation, is appropriate. We, therefore, dismiss the instant appeal. Copy of this judgment be sent to convict-appellant through the Superintendent of Jail concerned.