' MUHAMMAD ALAM KHAN, J.---Through this Criminal Appeal No, 12 of 2006 filed under section 410, Cr.P.C. By Mir Wal son of Syed Noor Ali, the appellant has sought the indulgence of this Court to set at naught the judgment, dated 4-1-2006 recorded by the learned Additional Sessions Judge-I Bannu in case F.I.R. No,95, dated 27-5-2001 under section 302, P.P.C. Of Police Station Kakki District Bannu, whereby he has been convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with payment of compensation amounting to Rs,One lac to the legal heirs of the deceased in terms of section 544-A, Cr.P.C., in default to suffer six months simple imprisonment. Likewise, Qamar Ali Khan is also aggrieved from the said judgment of the learned trial Judge and has questioned the same through Criminal Revision No,8 of 2006, praying for enhancement of the sentence of life imprisonment to that of the normal penalty of death and adequate increase in the compensation. Since both these matters are the outcome of one and the same occurrence and common judgment of the learned trial Judge are, therefore, disposed off by this single judgment.
2. The prosecution story as narrated by the deceased-then-injured Imtiaz son of Shafi Zaman on 27-5-2001 at 1857 hours in injured condition in the Casualty is to the effect that on the eventual day he along with his cousin Qamar Ali Khan were going to see the Cricket Match. He was ahead while his cousin was following him at about 10/12 paces. When at about 1815 hours they reached near the house of Naeem Khan situated at Bangi Khan Khujari, Mir Wal son of Syed Noor Ali Shah, co-villager armed with .30 bore pistol was sitting on the wall of Naeem Khan who on seeing them effectively fired at him with which he was hit, whereafter Mir Wal ran from the spot. The occurrence was stated to have been witnessed by said cousin Qamar Ali Khan and motive for the offence was disclosed to be that two months ago, an altercation had taken place between the victim and the accused. Such dying statement of the deceased-then-injured culminated into murasila on the basis of which the case was initially registered under section 324, P.P.C. But on the following day, i,e, 28-5-2001, when he succumbed to the injuries, section 324, P.P.C. Was substituted by section 302, P.P.C. .3. After registration of the case due investigation was carried out and on its conclusion complete challan was put in Court under section 512, Cr.P.C. The accused was arrested on 25-5-2003 and thus, supplementary challan was put in Court who was summoned and formally charge sheeted on 10-7-2003. Some of the formal P. Ws. Were examined when the accused again decamped when he was in judicial custody but was re-arrested on 10-4-2004. The prosecution in order to prove its case produced and examined ten witnesses and closed its evidence. Thereafter, the accused was examined under section 342, Cr.P.C. Where he professed innocence and false implication and did not wish to record his statement on oath under section 342(2), Cr.P.C., but desired to produce defence evidence. Hence, Jamshed and Alamgir Khan were examined as DWs 1 and 2, of whom the former recorded statement in defence of the accused while the latter produced extract from the relevant register and school leaving certificate Exh.D.W.2/1 and Exh.D,W.2/2 respectively vide application, dated 16-12-2005 of the learned defence counsel. After evaluating the evidence brought on record by both the sides and considering the arguments advanced at the bar by the learned counsel for the parties, the learned trial Judge found the accused guilty of the offence charged with and thus, on conviction sentenced him as mentioned above. Hence this appeal by the convict/appellant and revision by Qamar Ali Khan, who is the eyewitness of the occurrence and accompanying the deceased at the crucial time.
4. We have carefully examined record of the case with the valuable assistance of the learned counsel for the parties and anxiously considered the arguments advanced at the bar.
5. The case of the prosecution rests on the dying declaration of the deceased-then-injured, eye- witness account of Qamar Ail Khan and medical evidence. The occurrence had taken place on 27- 5-2001 at 1815 hours which was reported at 1857 hours, i,e, after 45 minutes where the injured/complainant charged the accused with specific arm and motive for the crime. While making his report, the deceased was in full senses which is evident from the statement of P.W.3.
Maqsoom Ali Shah HC who had submitted an application to the Doctor about the condition of the injured which is Exh.P.W.3/1. It shows that the deceased-then injured was well oriented in time and space and his statement was recorded after due permission from the doctor who when cross- examined on the point categorically stated that the injured could talk. The statement was thumb impressed by the deceased who singularly charged the accused for effectively firing at him. There is nothing on the record to show that the dying statement of the deceased was prompted from outside and being a day light occurrence, the identity of the accused could not be doubted. The dying declaration of the deceased was recorded after fulfilling the pre-requisite and being free from any suspicion thus, rings true.
6. The dying statement of the deceased-then-injured is fully supported by Qamar Ali Khan (P.W.10) who is the solitary and star eyewitness of the prosecution. Though he was questioned by the defence to be a planted witness and being closely related to the deceased, his testimony is free from doubt, particularly when the deceased had himself in his dying declaration mentioned him as an eye-witness of the occurrence in his promptly lodged report, the trustworthy testimony of such a witness cannot be brushed aside whose name was also mentioned B in the medico legal report (Exh.PL) in the column of relative which further proves his presence with the deceased at the time of occurrence. He was put to a lengthy cross-examination by the defence but nothing could be impeached to create a dent in the prosecution case. Be that as it may that the motive part of the incident was proved at the hilt, but motive is a double edged weapon and it cuts both the ways.
Mere absence or weakness of motive is not sine qua non for proving the offence of murder and is not a necessary ingredient to doubt the otherwise proved case of the prosecution.
7. The objection of the defence that according to the report of the Fire Arms Expert, four empties of .30 bore pistol recovered from the spot of accused were fired at from two different weapons of same calibre while the complainant/deceased has charged a single accused, is not sacrosanct and possibility of error in the opinion of such Expert cannot be ruled out in view of the dicta handed, down in the case of Noor Muhammad v. The State and another (2005 SCM R 1958 Citation (b)).
8. The accused has produced Jamshed Khan in his defence but his deposition is not trustworthy and confidence inspiring that the deceased had got injured when there was cross-firing between two rival groups and specially when he (the deceased) had sustained four entry wounds. Besides, the conduct of the appellant is a strong corroborative piece of evidence towards his guilt in the crime as he had not only C remained fugitive from law after commission of the offence but had also slipped away from the judicial custody. It is a single accused case where substitution is a rare phenomena. The dying statement of the deceased is admissible under Article 46 of Qanoon-e- Shahadat Order, 1984 which was fully supported by the statement of Qamar Ali. Khan P.W.10.
9. In view of the above stated facts and circumstances of the case, the prosecution had been successfully able to prove its case against the convict/appellant and the learned trial Judge has thus, rightly appraised the evidence brought on record and correctly drawn the impugned conclusion by holding the convict/appellant guilty of the offence charged with.
10. From whatever angle it is seen, we find no legal infirmity in the impugned judgment of the learned trial Court so as to call for interference therein which is accordingly upheld.
11. With regard to the Criminal Revision No,8/2006, since the motive alleged by the deceased in his dying statement was not proved by the prosecution, therefore, it being a mitigating circumstance, the punishment awarded to, the convict/appellant meets the ends of justice.
12. Resultantly, we find no merit in either of appeal of the convict/appellant and revision petition of Qamar Ali Khan and accordingly both are dismissed.
Appeal and .