ljaz-ul-Hassan, J.--The petitioners namely Qaisar Khan, Jamil and Nawaz, were tired by learned Additional Sessions Judge, Peshawar in case FIR No, 170 dated 1.3.2001, registered at Police Station Pishtakhara' for offences under Sections 302/324//427/148/149 PPC, at the instance of complainant Raz Muhammad, for an occurrence which allegedly took place on the same day at `maghrib' Azan `wela', in front of the house of one Arbab Lakhkar Khan, situated at `Sufaid Dehri', Peshawar.
2. The prosecution story, as reflected in paragraph 3 of the impugned judgment, is to the effect-- "that on 1.3.2001 Faqir Muhammad ASI of Police Post Sufaid Dheri on learning about firing in village Sufaid Dheri and bringing of injured persons to Khyber Teaching Hospital, Peshawar, he rushed to the hospital where he recorded report of Raz Muhammad s/o Saif-ur-Rehman resident of Ahmed Khel. He in injured condition reported that his cousin Hyas had purchased for him a motorcar and there was some dispute over the bargain, therefore, he in a taxi motorcar No, PRM/2248 driven by driver Ali Rehman s/o Saeedur Rehman alongwith his cousin Hyas and Shoaib left for settlement of dispute, that on their return when they reached near village Sufaid Dheri Khalwat Road near Banglow of Arbab Lashkar Khan a motorcycle and a Suzuki appeared in front of them. Qaisar and Khair Ullah s/o Waris got down from the motorcycle while Nawaz, Tilawat, Jamil, Baswar sons of Waris from the Suzuki and started firing at them. As a result, Ilyas, taxi driver Ali Rehman and Shoaib were wounded while he (complainant) himself was injured with the broken pieces of wind screen of motorcar; that on reaching to the hospital out of them Hyas and Ali Rehman succumbed to the injuries. The motive for the crime was old enmity".
3. On the conclusion of trial, vide judgment dated 11.9.2006, the petitioners, found guilty of the charges, were convicted and sentenced as follows:--
(a) U/S. 302(B), PPC the accused petitioners were sentenced to life imprisonment each (on two counts) with compensation amount of Rs, 1,00,000/- to be paid to the legal heirs of both the deceased, within the meaning of Section 544-A, Cr. P.C. or in default, each of them shall have to suffer six months simple imprisonment.
(b)U/S. 324, PPC. the accused petitioners were sentenced to three years R.I. each with a fine of Rs, 10,000/- each (on two counts) or in default, shall have to suffer three months simple imprisonment.
(c) U/S. 337-A(1), PPC.
The accused petitioners were sentenced to six months R.I. with payment of Rs, 5000/-each as "Daman" to the victim or in default, shall have to be dealt with under the provisions of Section 337- Y(2), PPC.
(d) U/S. 337-F(II), PPC. the accused petitioners were sentenced to one year R.I. with payment of Rs,10,000/- each as "Daman" to the victim or in default, shall have to be dealt with under the provisions of Section 337- Y(2), PPC.
(e) U/S. 337-A(III), PPC. the accused petitioner were sentenced to three years R.I. with payment of Rs,30,000/- each as "Arsh" to the victim or in default, shall have to be dealt with under the provision of Section 337-X, PPC.
(f) U/S. 148/149, PPC. the accused petitioner were sentenced, to one year R.I with a fir of Rs, 1000/- each or in default, each of them shall haw to suffer one month simple imprisonment.
(g) U/S. 427, PPC.
The accused petitioner were sentenced to six months R.I. each with a fine of Rs, 1000/- each or in default, each of the n shall have to suffer one month simple imprisonment.
4. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C, was also extended to each of the accused-petitioners.
5. The petitioners, feeling aggrieved, filed Criminal Appeal No, 603 of 2006, challenging their convictions and sentences whereas Gul Rehman, father of Ilyas deceased filed Criminal Revision No, 39 of 2007 for enhancement of sentences. Both were dismissed by the Peshawar High Court, Peshawar vide judgment dated 6.10.2008, by upholding the impugned judgment and order of the trial Court. Hence instant petitions, for leave to appeal.
6.Learned counsel for the petitioners in Criminal Petition No, 56-P of 2008, bitterly criticised the impugned judgment and attempted to argue that medical evidence and circumstantial evidence in the shape of recoveries does not support the case of prosecution; that reasonable care and caution was not exercised by the Courts below before placing reliance on the statement of the complainant recorded under Section 512, Cr.P.C. in absence of accused petitioner, more-so, when there was no strong independent corroboratory evidence sufficient enough to enhance its evidentiary value; that the involvement of three absconders demonstrates the mixing of true and false; that the medical evidence of the injured witnesses establishes their presence on the spot but is no gurantee for their credibility; that though the petitioners and absconding co-accused are alleged to have fired indiscriminately on the complainant party but no crime empty, has been recovered from the spot; that there are material contradictions in the statements of complainant and other eye-witnesses of the occurrence; that they have made material improvements in their respective statements to bring the case in line with the medical and other circumstantial evidence and that the version put forth by the said witnesses is contrary to the allegations made in the FIR.
7. We have heard at length Mr. Imtiaz Ali, Advocate for petitioners in Criminal Petition No, 56-P of 2008 and Mr. Mehmood Shah, Advocate for Gul Rehman petitioner, in Criminal Petition No, 77P of 2008. We have also gone through the record of the case with their assistance.
8. The crime in question is alleged to have taken place on 1.3.2001, at `maghrib azan wela', in the limits of village Sufaid Dheri, whereas the matter was reported to the police, the same night at 19.40 hours at Khyber Teaching Hospital, Peshawar, where victims were removed for treatment. The report has been lodged promptly, without loss of time, eliminating all chances of consultations and deliberations. Complainant Raz Muhammad and Muhammad Shoaib PW-24 have fully supported the prosecution case. Medical evidence and other circumstantial evidence collected by the Investigating Officer and brought on record at the trial further support and corroborate them, therefore, there is absolutely no reason to discard the evidence furnished by the said witnesses.
Both the witnesses i,e, complainant Raz Muhammad and PW-24 Muhammad Shoaib are natural and they sustained injuries during the incident which fact confirms their presence A on the spot.
There is no chance of mistaken identity of the petitioners, as the parties were known to each other prior to the occurrence.
9. The medical evidence produced by the prosecution fully corroborates the ocular account furnished by the prosecution witnesses. Report Ex.PA/1 would show that both the deceased and PW-24 Muhammad Shoaib sustained firearms injuries, whereas the complainant received injuries due to broken pieces of windscreen/glasses of the motorcar. This fact gets support from the postmortem reports of both the deceased and the injured witnesses. Both these witnesses had given consistent statements and they have corroborated each other on material points. The minor contradictions pointed out in prosecution case are negligible and could be safely ignored.
10. It may not be out of place to mention here that petitioners after the commission of the offence avoided their arrest and remained fugitive from the law for a considerable long period without any explanation. They were arrested on 5.7.2004, 29.12.2004 and 26.10.2004; respectively.
11. No doubt abscondence by itself is not sufficient to convict an accused person but is strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. When an accused person remains fugitive from the law for long time without any plausible and reasonable explanation, then his conduct after the occurrence becomes indicative of his guilt when it is considered in conjunction with the ocular and circumstantial evidence, as held by this Court in Mst.
Roheeda versus Khan Bahadur and another (1992 SCM R 1036).
12. Much emphasis has been laid on the fact that despite indiscriminate firing alleged to have been made by the petitioners and absconding co-accused, at the complainant party, no crime empty has been recovered from the site of occurrence indicative of the fact that the place of incident has not been established. The submission is misconceived. The spot is near the village abadi and the Investigating Officer reached their after some time of the occurrence. The possibility of the crime empties, having been taken away by the passersby, cannot be excluded. The non-recovery of crime empties; in the circumstances of the case, is not fatal to the prosecution case and nothing turns on it. Similar objection has been taken, regarding non-recovery of blood from the spot. This objection is also without force. Blood has been recovered from inside the motorcar in-question.
13. Having considered the matter from all angles in the light of the material on file, we see no illegality committed by the learned High Court, while convicting the petitioners with cogent reasons, as mentioned in Paragraphs No, 13,14 and 15 of the impugned judgment. There is no ground for indepth reappraisal of evidence and the grant of leave. The High Court on having examined the case concurred with the judgment of the trial Court for reasons not open to legitimate exception.
14.Neither any misreading or non-reading of the evidence on record nor any infirmity legal or factual, has been pointed out in the impugned judgment, calling interference by this Court.
15. Adverting to connected Criminal Petition No, 77-P of 2008, filed by Gul Rehman, for enhancement of sentence, we find that the petitioners have been involved for constructive liability, fatal injuries to the deceased and PWs have not been attributed with certainty to any one of them.
We are of the opinion that lenient view has been taken by the courts below for valid reasons.
Learned counsel for Gul Rehman petitioner also felt content and did not press the criminal petition.
16. In view of the above discussion, the petitions, having been four bereft of merit, are dismissed and leave to appeal is declined.