' KHALID MEHMOOD KHAN, J.---Appellant, namely, Rahat Khan alias Rait Khan has impugned the judgment/order passed by learned Additional Sessions Judge-II, D.I. Khan on 28-7-2009 vide which he has been convicted under section 302(2) and sentenced to life imprison with payment ofRs, 1,00,000 as compensation to the legal heirs of the deceased Muhammad Ramzan under section 544-A, Cr.P.C. In default of payment of compensation, he has further being directed to undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Has been extended to him.
2. Brief facts of the present case as per are that on 30-11-2005, at about 1830 hours, complainant Umar Hayat brought his injured unconscious brother Muhammad Ramzan to the Emergency Room of Civil Hospital D.I. Khan and reported to the effect that on the eventful day he along with his brother Muhammad Ramzan was proceeding back to their home from Peer Dabar at Degar Qaza Vela when they entered at the Gate of Dadday Khan his brother Muhammad Ramzan was proceeding ahead and he was behind him when in the meanwhile Rait Khan and Asghar Khan sons of Naseeb Khan came armed with Kalashnikovs and attempted at their lives by firing, 4,i result of their firing his brother Muhammad Ramzan got hit and injured while fortunately he escaped unhurt. The occurrence was witnessed by the people present there. There is no previous between the parties however, they were cultivating the landed property of Iqbal Khan and the accused party is annoyed over their cultivating such landed property, hence case F.I.R. No,237 dated 30-11-2005 tinder sections 302/324/34, P.P.C. Registered at Police Station, Kulachi District D.I. Khan.
3. Challan against the appellant/accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant/accused refused to plead guilty in response to the charge framed against him; therefore prosecution was directed to record its evidence to prove guilt of the appellant/accused.
4. The prosecution examined twelve witnesses during trial against the appellant/accused and then closed its evidence, where after statement of appellant/accused was recorded under section 342, Cr.P.C. Neither the appellant/accused recorded his statement on Oath under section 340(2), Cr.P.C.
Nor produced any evidence in defence.
5. The learned trial Court after hearing arguments of both sides convicted the appellant/accused and sentenced him as per detail given in first Para of this judgment.
6. Learned counsel for the appellant argued that the judgment/order is based on solitary statement of complainant which is not corroborated by other circumstantial evidence. He contended that no independent witness has been produced by the prosecution for the corroboration of the presence of complainant on the spot at the time of occurrence. He submitted that the occurrence had taken place in Kulachi instead of approaching to police station, Kulachi for lodging report the complainant had lodged his report before the police at Civil Hospital D.I. Khan.
He urged that the site plan was not prepared on the day of occurrence rather it was prepared on the next day. He further argued that the recovery of freshly discharged empties has been procured by the prosecution because it is impossible that in thickly-populated area the empties remain lying on spot for more than twelve hours. He referred to the FSL report Exh.P.W.9/1 according to that report the empties along with Kalashnikov allegedly recovered from the appellant/accused at the time of raid were sent after one year of the occurrence. He also referred to the case registered against the appellant/accused under section 13, A.O. Read with section 5, Explosive Substances Act regarding the alleged recovery of Kalashnikov in the said case, the appellant/accused was acquitted from the charge, hence the recovery of ammunition falsify the prosecution version. He further contended that motive specifically mentioned in the F.I.R. Was not proved by the prosecution. Lastly his argument was that as per absconsion of one year appellant/accused cannot be convicted because there is no other unimpeachable evidence against him.
7. On the other hand, learned counsel for complainant/respondent argued that the complainant/respondent has lodged the report promptly as soon as he reached to the Civil Hospital, D.I. Khan along with the then injured/deceased brother. He contended that it was daylight occurrence; hence question of misidentification could not arise. He submitted that recovery of blood-stained earth and three empties also corroborates the prosecution version. He urged that motive mentioned in the F.I.R. Coupled with the long absconision of the appellant/accused, his arrest during raid along with Kalashnikov and hand-grenade are sufficient for the conviction of appellant/accused.
8. Arguments heard and. Record perused, in the light of which our discussion is as under.
9. The proposition in the present case is that:--
(i) Whether the solitary witness produced by the prosecution is sufficient to convict the appellant/accused for the commission of offence?
(ii) Whether motive alleged in the F.I.R. Is sufficient for the corroboration of the prosecution case?
(iii) Is there any corroboration in the shape of recovery, medical and circumstantial evidence.
' We would also consider the lodging of report in Civil Hospital, D.I. Khan instead of Police Station, Kulahi.
10. It is admitted fact the occurrence had taken place in the daylight, hence question of misidentification of the appellant/accused and that of co-accused being co-villager does not arise. The presence of complainant along with deceased at the time of occurrence is natural and during lengthy cross-examination nothing has been brought out regarding the non-presence of complainant at the spot. There is nothing to contradict A the statement of complainant who was thoroughly cross-examined by the defence counsel, rather in the cross-examination of P.W.8/complainant stated that he rushed to the Civil Hospital, D.I. Khan immediately after the occurrence for the treatment of his brother the then injured/deceased is natural phenomenon which suggest the case of prosecution as natural one. The report was promptly lodged in the Hospital as soon as injured/ deceased was brought there.
11. So far question of preparation of site plan on the next day is concerned it has properly been explained by P.W.2 Muhammad Akram ASI in his cross-examination that the site plan was prepared on the next day because after lodging the report it was late hours and due to darkness it was not prepared. It was prepared by the Investigating Officer on the next day of occurrence. The preparation of site plan has not been shattered by the defence in the statements of P.W.2 and P.W.8. The recovery of blood-stained earth and three empties also corroborate the version of prosecution regarding the place of occurrence.
12. The main stress of the learned counsel for the appellant/accused was that the impugned judgment/order cannot be based on the solitary witness who is related to the deceased without corroboration of any independent witness. In the present case the presence of P.W.8/ complainant has been proved by the recovery of blood-stained earth and three empties supported by medical evidence. The defence has failed to bring on record any contradiction to the effect that the complainant was not present on the spot. After sustaining fatal injuries the complainant in the natural course had taken the deceased the then injured for his treatment to the Civil Hospital, D.I.
Khan. It is also brought on record in the cross-examination of P.W.8/complainant that his other brother Nawab Khan had also accompanied him in taking their then injured brother to the Civil Hospital, D.I. Khan. Nawab Khan also died after the occurrence who had identified the dead body of his deceased brother vide Exh.P.W.11/1 at the time of preparation of postmortem report. In the light of these facts the presence of complainant/solitary witness on the spot has been proved without any shadow of doubts.
13. So far the question of motive is concerned, the same has been mentioned in the F.I.R. As well as the same has been duly mentioned by complainant at the time of recording of his evidence but in the cross-examination nothing adverse has been brought on record for falsely charging the appellant/accused by complainant. There is nothing on record that the complainant due to some personal grudge or ulterior motive has charged appellant/accused for his personal gain or for any other enmity. The statement of the complainant P.W.8 is straight forward, natural, convincing one and confidence-inspiring. The latest principle enunciated by the apex Court is that it is not fatal if the motive is not proved however if there is other evidence available, which is straightforward, consistent, convincing, corroborated by medical evidence. We may rely upon the principle laid down by the apex Court in case reported in 2011 SCM R 856, wherein it is held; "Controverting the above contentions learned DPG contended that motive of the offence disclosed by the complainant though was categorically urged at the trial by the ocular witnesses; which was believed by the learned trial Court but for reasons recorded in the impugned judgment, the same was not believed by the learned High Court which would not per se be fatal to the criminal liability of the petitioner duly proved through the ocular account of the P. Ws. Corroborated by the medical evidence, who carried no animosity or against the petitioner to falsely involve him in the case and being the natural witnesses of the occurrence, which took place within their view was sufficient to prove the charge against the petitioner. The motive setup by the prosecution even, if not proved or disbelieved for any reason would not ipso facto in the circumstances of the case affect adversely on the prosecution nor is the essential ingredient, constituting the offence proved through evidence of ocular witnesses, whose given account of the occurrence was not only straightforward and consistent rather worthy of implicit reliance and convincing, corroborated by medical evidence, therefore, the impugned judgment is unexceptionable."
Keeping in view the above latest principle we are of the view that lack of proof of motive not adversely affect the prosecution case.
14. The unexplained long absconsion of the appellant/accused is strong corroboratory evidence in the present case. The appellant/accused did not surrender voluntarily before the police rather he was arrested during raid. Recovery of blood-stained earth and three empties from the spot coupled with medical evidence which has duly supported the version of prosecution story.
15. The result of our above discussion is that the conviction awarded by the trial Court on the basis of solitary evidence fully corroborated by other circumstantial evidence. The appeal in hand is being without force, therefore, dismissed and the conviction of the appellant/accused is maintained.