' MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment being recorded in Criminal Appeal No,91 of 2009, we also intend to dispose of Criminal Revision No,40 of 2009.
2. The appellant herein has questioned his conviction and sentence of life imprisonment as ta'zir under section 302(b), P.P.C. And the amount of compensation of Rs,100,000 (one lac) under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased and in default, the period of two years' S.I., his conviction and sentence under section 324, P.P.C. And sentenced to undergo two years' R.I.
Along with fine of Rs,20,000 or in default thereof to further undergo six months' S.I, his conviction and sentence under section 427, P.P.C. For the period of one year along with fine of Rs,10,000 or in default thereof to further undergo three months' S.I. Recorded by learned Additional Sessions Judge, Karak vide his judgment dated 18-2-2009 in case F.I.R. No, 88 dated 19-4-2005 Police Station Karak, District Karak.
3. The deceased Gul Sahib Shah while going to his duty early in the morning accompanied by his brother Asim Iqbal, the complainant, and his wife Mst. Roz Bibi and his son Muhammad Asif, were attacked by Usmanullah and Hafizur Rehman on the command and direction of one Anwar Bayaz.
Resultantly the deceased received fire-arms injuries and succumbed to his injuries at the spot.
Motive for the offence was given to be an attempted murder. All the three accused went into hiding. First of all Anwar Bayaz was arrested and then tried by the learned Sessions Judge, Karak and was acquitted on 10-4-2008. After his acquittal, the present appellant surrendered himself on 18-8-2008 who was tried by the learned Additional Sessions Judge, Karak and was convicted and sentenced as stated above.
4. Learned counsel for the appellant in support of his appeal contended that the prosecution has failed to establish case against the appellant which is an unseen occurrence and record of the case reflects that it appears to be the doing of one person for which three persons have falsely been implicated in the case. The story forwarded by the prosecution itself is not acceptable because as per version given by the complainant, the deceased was going from west to east and his left side was exposed to the accused as shown and described in the site plan of the case but the receipt of injuries on the person of the deceased would reflect otherwise because the deceased received injuries from different angles and sides. The witnesses to the occurrence being brother and son of the deceased were interested witnesses and their testimony is full of doubts which cannot be believed. Learned counsel for the appellant further submitted that the presence of the eye-witnesses at the time of occurrence also becomes doubtful and was not explained by the prosecution to satisfaction of a man of prudence.
5. As against that, Mr. Ishtiaq Ibrahim, learned Additional Advocate-General for State assisted by learned counsel for the complainant submitted that the appellant along with Usmanullah co- accused were directly charged for effective firing on the deceased and motive for the offence was fully explained, proved and supported by the record of the case. While explaining the receipt of injuries by the deceased, the learned counsel submitted that the deceased was alarmed through the "Lalkara" of co-accused Anwar Bayaz and a person after being alarmed and facing life threat cannot remain a statue, so his sudden movement and attempt to save himself from the attack, received injuries on different parts of the body and in different directions. He further submitted that the witnesses of the prosecution are consistent and have given a true and actual account of the case which was a broad daylight occurrence and there was no chance of substitution in presence of admitted motive. The medical evidence also supports the case of the prosecution. The unexplained abscondence of the appellant is another corroborative piece of evidence against him which cannot be overlooked in the circumstances of the case. The other co-accused is still absconding.
6. Counsel for the complainant further submitted that when a case under section 302, P.P.C. Is proved without any reasonable doubt, the accused is liable to the maximum punishment provided for the offence and requested for enhancement of the sentence.
7. Learned counsel for the parties were heard and record of the case was perused which would reveal that the prosecution produced eleven witnesses in support of its case. The case of the prosecution is based on ocular account given by the complainant P.W.9 and Muhammad Asif P.W.10, the son of the deceased. The other eye-witness namely Mst. Roz Bibi was abandoned by the prosecution being an unnecessary witness of the same facts. The eye-witnesses have fully explained and justified their presence at the relevant time. The deceased was a primary school teacher whereas the complainant was a high school A teacher and both the schools were situated adjacent to each other and both the brothers i.e, deceased and the complainant were going to their duties. The entire evidence on the record would reveal that the deceased and complainant, both the brothers, were going to school has not been shattered or denied by the other side. This very fact appears to be correct that both the schools where both the brothers were posted, were situated adjacent to each other. So, the presence of complainant is proved without B any shadow of doubt. It was their routine to go together for their duties. Whereas the son of the deceased Muhammad Asif, P.W.10 has explained his presence that lie along with his mother Mst. Roz Bibi were going to participate in a marriage ceremony in village Bego Khel. Both the eyewitnesses were consistent to the fact that they were not invited in the marriage ceremony of their co-villager namely Bhai so, they did not participate in that marriage ceremony. The categoric statement of P.W.10 that he along with his mother was going to Begu Khel to participate in the marriage ceremony has again not been denied or shattered by the defence. The presence of P.W.10. At the relevant time is thus established. So, non-production of Mst. Roz Bibi as a witness to the same facts being unnecessary would have no adverse effect on the case C of the prosecution. The argument of the learned counsel for the appellant that as per postmortem report, the stomach was empty and P.W.9 has stated that they take breakfast before they leave for their duties would again be of no help to the defence as there was no question about the time of breakfast as to at what time they had taken their breakfast. There was no question as to whether they had taken any breakfast or not on that day. The testimony of the eye-witnesses if considered, that is consistent and no contradictions or discrepancies are there which could shatter their testimony or cause any reasonable doubt about their presence at the spot. So, the ocular account given by the eye- witnesses is established without any reasonable doubt.
8. The statement of doctor who conducted the post mortem examination of the deceased was recorded as P.W.6 who described the injuries on the person of the deceased which would reflect that entries of many of the injuries were on the right side whereas some were on the left side of the deceased and similarly entrance of some of the injuries from upwards to downwards and from downwards to upwards. The receipt of injuries on the person of deceased would apparently reflect that he was fired upon from different sides and angles but when the circumstances of the case are taken into consideration, then one can safely hold that while going from west to east and the accused were on the left side of the deceased, on hearing the "Lalkara" of Anwar Bayaz co- accused, he became alert and naturally he must have tried to protect himself and might have taken an about turn. In a situation like one in hand, the natural and sudden reaction to a life threat would be to protect oneself. The different directions of the injuries can again be explained that after receiving first fatal injury, the deceased fell on the ground and then he received injuries from different directions. So, the argument of the learned counsel for the appellant that the story of the prosecution is not acceptable and the deceased was fired upon from different directions is not acceptable and would be of no help to the defence.
9. 14 empties of 7.62. Bore were recovered from the spot and the FSL report Exh.PX/1 confirmed that the empties C.1 to C.14 were fired from different 7.62. Bore weapons would be again a circumstance which would refute the argument of the learned counsel for the appellant that circumstances of the case reveal it to be the doing of one man.
10. Though the abscondence of an accused alone cannot be considered as sufficient to base conviction but if there is other sufficient E evidence against the accused, then abscondence would also work as a corroborative piece of evidence. The unexplained abscondence of the appellant spreading over the years in the circumstances would again be a corroborative piece of evidence against the appellant as the occurrence took place on 19-4-2005 and he went into hiding. He remained absconder and kept on waiting till the result of other co-accused Anwar Bayaz who was acquitted on 10-4-2008 an after his acquittal, he surrendered himself on 18-8-2008. His such abscondence spreading over the years remained unexplained which in the circumstances of the case appears to be an intentional hiding which also reflects his guilty mind, coupled with ocular evidence would be sufficient to base conviction.
11. Motive for the offence is also proved on record that a case F.I.R. No,5 dated 11-1-2004 Police Station Karak was registered under sections 324/34, P.P.C. Against the deceased on the report of Anwar Bayaz, the acquitted co-accused and in that case, effective role of firing was attributed to the deceased. Where there is clear proof of motive for the crime, it lends additional support to the case of prosecution.
12. All the above stated facts and circumstances of the case would reveal that the prosecution has proved its case beyond any reasonable doubt against the appellant. Ocular evidence in the case is confidence inspiring and is supported and in line with the circumstances of the case. Mere relationship in the circumstances of the case would not be a ground to disbelieve the unshattered testimony of the eye-witnesses. Motive for the occurrence has fully been explained in the cross- examination of P.W.10. The acquittal of the other co-accused would have no direct bearing on the merits of this case because as the roles attributed to the acquitted accused and the appellant along with absconding accused are totally different. So, we without any hesitation are of the view that the conviction and sentence recorded by the learned trial Court is in accordance with the evidence and material available on the record and this very fact has also been considered by the trial Court.
13. As far as the enhancement of the sentence of the appellant is concerned, that too is not permissible in the circumstances of the case as the motive alleged was directly against the deceased, so, the punishment awarded to the appellant is in accordance with law.
14. Hence, the appeal against conviction and the criminal revision for enhancement of sentence both are dismissed.