' ROOH-UL-AMIN KHAN, J.---This common judgment shall dispose of instant criminal appeal filed by appellant-convict Meem Bahadar against his conviction and sentence as well as connected Criminal Revision No,207 of 2010, titled, "Syed Qamar Shah v. Meem Bahadar" filed by petitioner/complainant for enhancement of sentence of respondent-convict; as both are arising out of the same judgment of the learned Judge Juvenile Court/Additional Sessions Judge-I, Mardan dated 27-10-2010.
2. Appellant Meem Bahadar son of Ghulam Bahadar, was tried by the learned Judge Juvenile Court/Additional Sessions Judge-I, Mardan, for the murder of one Sikandar Shah and vide judgment dated 27-10-2010, convicted him under section 302(c), P.P.C. And sentenced to imprisonment for life along with a fine of Rs,1,00,000 (One lac) as compensation within the meaning of section 544-A, Cr.P.C., to be paid to the legal heirs of the deceased or in default whereof to undergo 6 months' S.I. Benefit of section 382-B, Cr,P.C. Was extended in his favour and as the appellant had attained the age of majority, therefore, was not kept in the Borstal Institution.
3. Precisely, the prosecution case as per contents of F.I.R. Is that, on the eventful day at 1230 hours, complainant Syed Qamar Shah along with his cousin Sikandar Shah, Muhammad Zeb and Hameed, was present in the Baithak of Aurangzeb, in village Malandrai. In the meantime, appellant Meem Bahadar duly armed with firearm came there and resorted to firing at Sikandar Shah, with intention to commit his qatl-e-amd as a result he was hit and died on the spot. The accused, after commission of the offence, decamped from the spot. Motive of the occurrence, as stated by complainant was an altercation between the accused and the deceased, two days prior to this tragedy, on fare of Datsun. Apart from complainant, P. Ws. Muhammad Zeb and Hameed, have statedly witnessed the incident. The dead body of the deceased was shifted to Police Station where the incident was reported by the complainant. His report was recorded in the shape of F.I.R.
Mentioned-above.
4. On completion of investigation, as the accused-appellant went into hiding, as such challan in terms of section 512, Cr.P.C. Was submitted against him. On his arrest, supplementary challan was submitted against him before the trial Court, where he was formally charge-sheeted, to which he pleaded not guilty and claimed trial. In order to prove the guilt of accused-appellant, prosecution examined eight witnesses. After closure of the prosecution evidence, statement of the accused- appellant under section 342, Cr.P.C. Was recorded, wherein he denied the prosecution allegations and professed his innocence. He however, declined to be examined on oath or to produce evidence in defence. On conclusion of trial, learned trial Court, convicted and sentenced the accused as mentioned above. Hence, this appeal.
5. We have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
6. Admittedly, it is a daylight occurrence in which appellant-convict is singularly charged for the murder of the deceased. Both the parties are well known to each other. Thus, in the circumstances, the possibility of, mistaken identity is to be ruled out and false implication of an innocent person for the real culprit is a rare phenomenon. In this regard reference can be made to case titled, "Muhammad Iqbal v. The State" (PLD 2001 Supreme Court 2222. This fact is also established on the record that there was an altercation between the deceased and the accused on fare, two days prior to the incident. On thorough scrutiny of the record, we could not find an iota of evidence suggesting any previous animosity between the accused and the eye-witnesses; in absence of which, question of false implication of the accused does not arise. Syed Qamar Shah who is the complainant as well as the eye-witness of the incident, was examined as (P.W.3). He reiterated the same facts as narrated by him in his report. He has furnished the natural and true account of the tragedy. Beside his own presence, he has fully established the presence of the deceased and P.W.
Muhammad Zeb, as well as that of the accused; at the time and place of incident. The version of complainant is fully corroborated by Muhammad Zeb the other eyewitness, who was examined as P.W.4. Both, the complainant and P.W. Muhammad Zeb are consistent with each other on each and every material particular of the incident. They have fully established their presence at the crime spot at the time of incident. P.W. Muhammad Zeb has also verified the report of complainant and during his statement he has also admitted his signature on the report, which proves that he was very much present with the complainant at the time of occurrence as well as at the time of report.
Both these P.Ws. Were subjected to lengthy and comb searching cross-examination by the defence but nothing beneficial could be extracted from them. The defence has failed to bring out anything material from their mouths to prove that either they were arranged witnesses or having any previous motive to falsely implicate the accused. The mere fact that both of them are related to the deceased, would not be sufficient to discard their testimony and to exonerate the accused from the charge of murder. The testimony of a witness is always gauged from reading his entire statement in juxtaposition with the circumstantial evidence. If, it finds corroboration from circumstantial evidence, it must be termed as confidence-inspiring and trustworthy. The credibility of a witness depends upon the intrinsic value of his statement furnished by him. There is no universal principle in criminal administration of justice that in every criminal case, the relatives of the deceased shall be held as interested witnesses and their testimony shall be disbelieved. It all shall depend upon the rule of prudence and reasons to hold that a particular witness was present at the scene of occurrence and that he is making a true statement. If a witness being the close relative of the deceased, furnished a true account of the occurrence and establishes his presence at the spot at the time of occurrence, it would not be enough to discredit his testimony on the mere reason of his close relationship with the deceased. In the instant case, statements of the complainant Syed Qamar Shah (P.W.3) and Muhammad Zeb (P.W.4), both eye-witnesses do inspire confidence for the reasons that they have established their presence in the Baithak of Aurangzeb where the deceased was done to death and at that particular time, they had assembled for patching up the matter occurred between the deceased and accused two days before the incident, on fare.
7. As regards the argument of the learned counsel for the appellant-convict that statements of P.W.3 and P.W.4, are contradictory to each other on the time of their arrival to the Police Station as according to P:W.3 they reached the Police Station at 3-30 p.m. While P.W.4 has disclosed the said time as 3 p.m. The alleged contradiction pointed out by learned counsel for the appellant-convict cannot be termed as contradiction rather it is a minor discrepancy thus not fatal to discard the straightforward and confidence inspiring testimony of the two eyewitnesses. Some discrepancies are inevitably bound to occur on account of lapse of memory owing to the intervening period. Of course, there have been cases where thoroughly drilled and well-tutored witnesses after going through several rehearsals made statements which were almost verbatim repetition of their police statements as well as those of each other at the trial and the courts have been very rightly skeptical about such parrot-like reproductions. It is only the material discrepancies corning into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. Nothing of the kind is noticeable in the instant case. On the other hand, we have not been able to find any inherent infirmity in the testimony of the eye-witnesses casting doubt on its veracity. (Reliance may be placed on case titled, "Abdur Rashid v. Umid Ali and 2 others" (PLD 1975 Supreme Court 227). The minor and cosmetic discrepancies in the statements of the P.Ws. Are always expected and ignorable which do occur with the passage of time. Such discrepancies are the inbuilt proof of the truthfulness of the witnesses which shows their straightforwardness and that they are giving their, statements without being tutored. Those contradictions which totally negate the basic fabric of the prosecution story are considered vital, benefit of which is always extended to the accused not as a matter of grace or concession but as a matter of right. As regards the instant case, admittedly, appellant-convict remained fugitive from law for more than 3 years and after passage of such a long period, minor discrepancies may occur in the statements of the P.Ws., and the accused cannot get premium thereof, as, such conduct will be close to natural human behaviour; rather it would be unnatural and extra-ordinary if a witness discloses the exact time, date, as well as each and every event which has occurred in the commission of offence 415 years ago.
8. The prosecution case, besides the ocular account also lends support from circumstantial evidence in the shape of recovery of bloodstained earth, blood-stained last worn clothes of the deceased and bloodstained rope of the Cot, taken into possession by the I.O. During spot inspection and sent to the FSL for chemical analysis. According to Serologist report it was a human blood and of tile same group. The I.O., during spot inspection, also observed bullet marks on the wall, falling in the line of fire and also took into possession crime empty and a missed live round. All these material pieces of circumstantial evidence establish the place of occurrence as alleged by the complainant and prove that the deceased was done to death at the same place by the accused in the mode and manner as alleged by the complainant. The autopsy report of the deceased further supplement the version of complainant that deceased was done to death with firearm.
9. Admittedly, the occurrence has taken place on 23-3-2006 and the appellant-convict got busted by the local police in August, 2009 i.e, almost, after a period of more than 3 years of the occurrence.
The appellant-convict has not furnished any explanation, muchless plausible, for his long and noticeable abscondence. No doubt, abscondence itself is not sufficient to prove the guilt of absconder, but it may provide corroboration to the other evidence and circumstances of the case, proving his guilty conscious. It is well-settled law that abscondence of an accused shall be taken as a corroborative piece of evidence in presence of convincing and unchallenged prosecution evidence. In the instant case, if the long and unexplained abscondence of appellant-convict is put in juxtaposition with the ocular account furnished by P.W.3 and P.W.4, recovery of crime empty and a missed live round as well as post-mortem report of the deceased and positive FSL report regarding the bloodstained articles, one would come to an irresistible conclusion that abscondence of the accused corroborates the prosecution version. Besides that, by becoming fugitive from law, the appellant-convict diminished the possibility of recovery of crime weapon and thereby deprived the prosecution from a best piece of evidence, premium of which cannot be given to the appellant-convict.
10. The prosecution through cogent and reliable evidence has proved that deceased was a datsun driver and a brawl took place between him and the appellant-convict, two days prior to the occurrence, for settlement of which the complainant along with P.W. Muhammad Zeb and deceased had assembled in the Baithak of Aurangzeb, but before any negotiation, in the meanwhile the deceased was done to death by the appellant-convict. Thus, the motive as alleged by the complainant in his report has been established by the prosecution through cogent, coherent K and confidence-inspiring evidence.
11. The last limb of the argument of the learned counsel for the appellant is that at the time of occurrence the convict was below the age of 18 years and being a juvenile, was entitled to be dealt with under section 11 of the Juvenile Justice System Ordinance, 2000. In support of his argument, he placed reliance on the judgment of the Division Bench of this court dated 14-10-2009, passed in Criminal Appeal No,45 of 2008, whereby a juvenile accused was placed on probation under the spirit of section 11 of the Ordinance ibid. No doubt, the appellant at the time of commission of offence was a juvenile, but at the time of arrest and conclusion of his trial and passing the impugned judgment of conviction, he had attained the age of 19/20 years. Section 11 of the Juvenile Justice System Ordinance, 2000, provides that where on conclusion of inquiry or trial, the Juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in any law for the time being in force, the Juvenile court may, if it think fit, direct the child offender to be released on probation for good conduct and place such child under the care of guardian or any suitable person executing a bond with or without surety as the Court may require, for the good behaviour and well-being of the child for a period not exceeding the period of imprisonment awarded to such child or make an order directing the child offender to be sent to a Borstal Institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier. Similarly, under rule 6 of the Juvenile Justice Rules, 2001, if the Juvenile court on the conclusion of an enquiry or trial, finds that the juvenile has committed the offence, the Court may make an order directing the juvenile to be sent to a borstal institution until he attains the age of eighteen years or for such period of imprisonment as awarded to him by the Court whichever is earlier. To understand the importance of relevant provision, section 11 of the Juvenile Justice System Ordinance, 2000, is reproduced herein below:-- "S.11. Release on Probation. Where on conclusion of an inquiry or trial, the juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in any law for the time being in force, the juvenile Court, may, if it think fit:-
(a) Direct the child offender to be released on probation for good conduct and place such child under the care of guardian or any suitable person executing a bond with or without surety as the Court may require, for the good behaviour and well-being of the child for a period not exceeding the period of imprisonment awarded to such child: ' Provided that the child released on probation be produced before the Juvenile periodically on such dates and time as it may direct;
(b) make an order directing the child offender to be sent to a Borstal institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier;
(c) reduce the period of imprisonment of probation in the case where the court is satisfied that further imprisonment or probation shall be unnecessary.
It appears from the above quoted beneficial provision that mere minority or juvenileship is not the criteria for grant of relief under section 11 ibid. In matter of conviction, there may be some minor offences, in which, the sentence may be normally short and if the court passed an order of conviction, in the circumstances the beneficial provision may be exercised in his favour. But, if convict is charged for an heinous offence of murder and sentenced to life imprisonment, his case may not be treated at par with minor offences. The age type and seriousness of the offence and past record of criminal activities of the convict, at the time of conviction, shall also be a relevant factor, which shall also be adhered to Juvenile Justice System, which is certainly meant to treat a child accused with care and sensitivity, no doubt, offering him a chance to reform and settle into the mainstream of society, but the same cannot be allowed to be used as a ploy to dupe the course of justice, while conducting trial and treatment of heinous offences. The court must be sensitive in dealing with the juveniles who are involved in cases of serious natures like murder, gang rape, terrorism, sexual molestation and most of other offences. The minor/juvenile accused may never be allowed to abuse the statutory protection and concession, rather involvement in a flagitious crime, must be meted out stringent punishment to discourage the involvement of minors by the people for settling their score through them (juveniles). The judgment referred to by learned counsel for the appellant-convict, is not applicable to the instant case as the accused, in the referred case, at the time of conviction and sentence had not attained the age of majority and he being a juvenile of 16/17 years, was thus placed on probation in consonance with letter and spirit of section 11 of the Juvenile Justice System Ordinance, 2000. But, in the instant case, the appellant- convict, at the time of his arrest, conviction and sentence, had attained the age of majority as according to his statement recorded under section 342, Cr.P.C., he has been shown as 19/20 years.
Similarly, in the impugned judgment his age has been mentioned 19/20 years. Thus, the principles laid down in the referred judgment are not applicable to the facts and circumstances of the instant case.
12. As regards the quantum of sentence to be awarded to the convict to meet the ends of justice, admittedly, the convict has been tried as juvenile and under section 12 of the Juvenile Justice System Ordinance, 2000, accused being juvenile could not be awarded the punishment of death and he could not be ordered to labour, etc. In view of clear bar contained in the law, which is applicable to the facts and circumstances of the case, revision petition for enhancement of sentence is not competent. The plain reading of section 12 of the Juvenile Justice System Ordinance 2000, least required any interpretation, wherein the Legislature had clearly provided that the death sentence shall not be awarded to Juvenile. Thus, the appellant being a juvenile, the learned trial Court has rightly awarded the sentence to which no exception can be taken.
13. Learned trial Court has properly appreciated the entire evidence available on the record and has reached to a right conclusion to which no exception can be taken. Learned counsel for the appellant-convict has failed to point out any misreading or non-reading of evidence or any infirmity in the impugned judgment which may warrant interference of this court in its appellate jurisdiction.
' Consequently, both, the appeal as well as criminal revision petition stand dismissed.
Appeal/.