JUDGMENT MIAN FASIH-UL-MULK, J.--- Convict-appellant Umar Zeb along with his co-accused namely Jehan Zeb and Alamzeb was tried by learned Additional Sessions Judge, Mansehra on charge under sections 302/34, P.P.C. For causing murder of Muhammad Tariq deceased and having been found guilty Umar Zeb was convicted and sentenced to suffer imprisonment for life.
He was also directed to pay compensation of Rs.1,00,000 and in default to further undergo six months' S.I. Whereas accused Jehan Zeb and Alum Zeb were acquitted of the charge. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant. Umar Zeb has filed Criminal Appeal No.68 of 2007 against his conviction and sentence whereas complainant has filed Criminal Appeal No.70 of 2007 against acquittal of accused Jehan Zeb and Alam Zeb and Criminal Revision No.24 of 2007 for enhancement of sentence of Umar Zeb. As all the matters have arisen out of one F.I.R. And impugned judgment, therefore, these are disposed of by this single judgment.
2. The prosecution case as narrated in F.I.R. Is that on 6-11-2005 at 13-30 hours, complainant Tahir Mehmood reported to the local police that he along with his brother Tariq Mehmood had gone to the house of their paternal aunt Mst. Taj-un-Nisa at Baffa Maira to offer Eid greetings where he sat outside the house of his paternal aunt and his deceased brother Tariq Mehmood left towards the house of his paternal uncle Rahimullah for Eid greeting. It was about 12-45 p.m. When deceased reached near the house of Abdul Latif Kaghani, he saw accused Umar Zeb, Alam Zeb and Jehan Zeb duly armed with fire arms coming from Baffa side and as they reached near deceased, accused Umar Zeb started tiring at him, as a result of which, he was hit and died at the spot.
Besides the complainant, the occurrence was allegedly witnessed by Shakir Ullah and Haifz Ullah sons of Hazrat Ullah. Motive for the occurrence was stated to be blood feud enmity between the parties.
3. At trial, after observing codel formalities, formal charge was framed against the accused, who professed innocence and claimed trial. The prosecution in support of its case examined eleven witnesses in all.
4. On close of prosecution evidence, accused were examined under section 342, Cr.P.C., who pleaded false implication. The did not appear as their on witnesses on Oath in disproof of allegations levelled against them nor produced evidence in defence. On assessment of evidence, the appellant Umar Zeb was found guilty and was convicted and sentenced as mentioned above whereas accused Jehan Zeb and Alam Zeb were acquitted of the charge.
5. It is urged on behalf of appellant that evidence produced before the learned trial Court did not justify conviction as the same is full of contradiction and discrepancies which cast heavy doubt on the prosecution case. The charge against appellant based on prosecution evidence cannot be held proved as per requirement of law as the same evidence has been disbelieved qua the co- accused. It was further contended that due to strained blood feud enmity, the possibility of false implication of accused cannot be ruled out. The statements of eye-witnesses P.W.5 and P.W.6. Are not only self-contradictory on material points but also contrary to medical evidence. It was further argued that non-examination of maternal uncle or aunt of complainant would suggest that the complainant was not at all present on the spot, who could witness the occurrence. Learned counsel for appellant maintained that the trial Judge has wrongly believed the evidence regarding recovery of weapon of offence, which in fact was recovered after a period of 2-1/2 months of the.
Occurrence. Likewise, the positive report of Arms Expert and abscondence of appellant even if proved would at the most be considered as a corroborative piece of evidence. Learned counsel concluded that prosecution has failed to prove its case beyond reasonable doubt and instead of extending benefit of doubt, the learned court has stretched the case in favour of prosecution, thus prayed for acquittal of appellant. Reliance was placed on 2007 SCM R 1427, PLD 2008 SC 1 and 2010 SCM R 566.
6. On the contrary, learned counsel for complainant argued that the trial court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. The eye-witnesses P.W.5. And P.W.6. Are not only residents of the locality but are closely related to both the parties which fact of relationship has been established from record. Learned counsel went on to say that the venue of occurrence is proved wherefrom blood was obtained and the result thereof was positive. Recovery of, .222 bore empties from the spot and subsequent recovery of crime weapon coupled with matching result would further strengthen the prosecution case. Learned counsel for complainant concluded that the prosecution has succeeded in proving its case beyond reasonable doubt against the 'appellant Umar Zeb, however, wrongly and illegally taken lenient view in awarding sentence to him and acquitting his co-accused. He stressed that appellant Umar Zaib has committed murder of deceased in brutal and callous manner, therefore, normal penalty of death be awarded to him. Finally, it was submitted that co-accused Jehan Zeb and Alam Zeb are vicariously liable for the offence, therefore, they be sentenced according to law.
Reliance was placed on 2004 SCM R 477, 2008 SCM R 222, 1992 SCM R 1036 and 2004 PCr.LJ 1684.
Learned State Counsel supported the impugned conviction, rather adopted almost the arguments advanced by learned counsel for the complainant.
7. Before dilating upon merits of the case, it would be appropriate to examine the principle of appreciation of evidence, recovery of crime weapon and empties, recovery of other incriminating articles, abscondence of accused, report of Forensic Science Laboratory and mitigating circumstance(s) as enunciated in judicial precedents and cited by both the parties at bar, which would be advantageous for safe administration of justice.
8. We would first take up the case of Dr. Israr-ul-Haq v. Muhammad Fayyaz and another reported in 2007 SCM R 1427. In this case their Lordships of apex Court have held that when direct evidence is not believed and the same having failed, corroborative evidence in the shape of recovery of an incriminatory article in the nature of crime weapon does not by itself prove the prosecution case.
9. In the case of Mushtaq and 3 others v. The State (PLD 2008 SC 1), the Supreme Court held that the positive report of Forensic Science Laboratory which can not be taken into consideration for the simple reason that crime weapon and empties were sent together to the Forensic Science Laboratory and, therefore, has rightly been rejected by the learned High Court.
It is, however, worth mentioning that in this case four persons were awarded death sentence by the trial court. High Court on appeal converted death sentence of three accused into life imprisonment but maintained death sentence of one accused. The august Supreme Court on the principle of consistency converted death sentence into life imprisonment of fourth accused as well.
10. On the question of abscondence, we may refer to the judgment of Supreme Court in the case of Rohtas Khan v. The State (2010 SCM R 566) wherein it was observed that abscondence of accused is only a suspicious circumstance. It was further held that abscondence of accused is no doubt a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence.
On the same point, the august Supreme Court in the case of Mst. Mumtaz Begum v. Ghulam Farid and another (2003 SCM R 647) held that when an accused absconds after commission of offence, an adverse inference is drawn against him to the effect that because he has committed the offence, therefore, to hamper the process of investigation of the case he has absconded.
11. Now we may refer to the cases relied upon by the complainant. In the case of Wilayat Ali v. The State (2004 SCM R 477) the Supreme Court while expressing its view held that any contradiction, improvement or other factors made by a witness reflecting adversely on his credibility would not by itself be sufficient to reject his testimony as a whole. Court can rely upon a portion of the testimony of such witness if it is corroborated by other reliable evidence or circumstances.
12. Yet in another case reported in 2008 SCM R 222, it was observed that ocular account of occurrence and motive of offence stood corroborated by medical evidence' and recovery of crime weapon from spot on the same day of Occurrence. Defence counsel could not create even a slight doubt qua truthfulness of evidence of eye-witnesses and could not substantiate by direct or circumstantial evidence its plea of false implication or substitution of accused for real culprit. Non- production of barber or any other witness present at spot thus could not be considered a circumstance adverse to prosecution.
13. Last but not the least referring to the question of sentence, the Supreme Court in the case of Mst: Roheeda v. Khan Bahadur and another (1992 SCM R 1036) observed that motive as alleged having not been fully proved, lesser penalty as provided under the law would amply meet the ends of justice. Accused was accordingly sentenced to imprisonment for life.
14. In the instant case, it is a daylight occurrence. Convict Umar Zeb has been directly charged in a promptly lodged F.I.R. Within 45 minutes of the occurrence by assigning specific role of firing and causing brutal murder of deceased Tariq Mehmood with lethal weapon. Co-accused Jehan Zeb and Alam Zeb have been charged for mere presence and no overt act has been attributed to them. P.Ws. Tahir Mehmood, Shakirullah and Hafizullah have furnished the ocular account of unfortunate incident, which is found consistent, trust worthy and confidence inspiring as they have fully supported each other on material points. The medical evidence furnished by Dr. Muhammad Amjid is found fully consistent with ocular account. There is no major contradiction and discrepancy in the evidence of prosecution. The prosecution witnesses stood firm and their testimony could not be shattered though they were subjected to lengthy cross-examination.
15. Appellant Umar Zeb went into hiding and remained fugitive from law for sufficient long time despite the fact that he was serving as Moharrir in the Sessions Court Abbottabad and all necessary proceedings within the meaning of sections 204 and 87, Cr.P.C. Were completed against him. On his arrest, he led to the recovery of unlicensed crime weapon .222 bore rifle, which was sent to Arms Expert for analysis along with the empties recovered from the spot and report is in positive.
There is sufficient ocular as well as circumstantial evidence, which reasonably connect him with the commission of offence. The prosecution has proved its case against the appellant Umar Zeb beyond any shadow of doubt. The case against co-accused Jehan Zeb and Alam Zeb stands on different footings, therefore, the trial court rightly acquitted them.
16. As regards the criminal revision for enhancement of sentence filed by Tahir Mehmood suffice it to say that the learned trial court on the question of appropriate punishment has advanced the reasons that since three accused have been charged in the case, out of which the case of two accused is not free from doubt, besides there is long standing previous enmity between the parties and number of criminal cases were registered against them, in such circumstances the penalty of death was not considered appropriate but imprisonment for life was awarded to appellant which seems justified in circumstances of the case. The learned trial Court 'has rightly considered each and every aspect of the case and rendered a well-reasoned judgment warranting no interference by this Court. In the circumstances, the impugned conviction and sentence against appellant is maintained.
17. Resultantly both the appeals and criminal revision being without merit are hereby dismissed and impugned judgment is upheld.