' ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 24-4-2012 passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Lower, Chakdara, whereby Rehmat Zaib son of Muhammad Razaq was convicted and sentenced under section 302(b), P.P.C. To death (on two counts) and also fine to Rs,5,00,000 (five lac rupees) as compensation under section 544-A, Cr.P.C.
To be paid to the legal heirs of each deceased. The compensation was ordered to be recoverable as arrears of land revenue.
2. Rehmat Zeb filed Jail Criminal Appeal No, 89 of 2012 against his conviction and the learned trial Court has sent Murder Reference No,5 of 2012 for confirmation of the death sentence awarded to the accused-appellant Rehmat Zeb.
3. We intend to dispose of the Criminal Appeal No,89 of 2012 and Murder Reference No,5 of 2012, through this single judgment.
4. Mash Bibi (P.W.3) lodged a report to police that on 26-3-2007 her husband Bahadar Zeb was sleeping in the courtyard of his house while her sister-in-law Mst. Zenab Bibi was offering Isha prayer whereas she was present in the veranda of her house. At 19.45 hours her brother-in-law, namely Rehrnat Zeb entered into the house duly .Armed with pistol and went near to her husband and said that why he looked to his wife with evil eyes and at once made two fire shots at him, subsequently, he entered into the room and also made two fire shots at Mst. Zenab with the intention to kill them, as a result of which both of them died on the spot. The occurrence was stated to be witnessed by her daughter Mst. Lubna while motive was stated to be of "zun" woman. Report of the complainant was recorded in shape of Murasilla Exh.PA/I and sent it to Police Station, Oach, and on the basis of which case vide F.I.R. No,560 under sections 302, P.P.C. Was registered at Police Station, Oach, on 26-3-2007.
5. Fazal Mabood, P.W.6, after recording report of the complainant, prepared injury sheets and inquest reports of both the deceased and dispatched it to hospital. Investigation of the case was entrusted to Tahir Shah SI P.W.14, who proceeded to the spot and prepared the site plan Exh.PB, recovered blood-stained earth, Sarhana having corresponding cut mark, three bullets and a spent bullet, two empties of .30 bore, bulb 100 volt and prayer mat and took the same vide recovery memos Exh.P.W.8/1 to Exh.P.W.8/5. He took into possession blood-stained garments of both the deceased and also sent the recovered articles to FSL. Since the accused was avoiding his lawful arrest, therefore, he obtained warrant under section 204, Cr.P.C. And notices under section 87, Cr.P.C. And after completion of necessary investigation, handed over the case file to SHO Muhammad Naeem Khan P.W.1, who further submitted complete challan under section 512, Cr.P.C., subsequently, the convict-appellant was declared as proclaimed offender by the trial Court.
6. On 15-4-2011 convict-appellant was arrested and supplementary challan against him was submitted. The learned trial Court after compliance of the legal formalities, framed the formal charge to which he did not plead guilty and claimed trial.
7. Prosecution in order to prove its cases, examined the witnesses, thereafter, the statement of the accused under section 342, Cr.P.C. Was recorded by the trial Court. The convict-accused pleaded his innocence, however, did not produce defence evidence nor appeared as his own witness in terms of section 340(2), Cr.P.C. Learned trial Court, after hearing the arguments of the parties, convicted and sentenced the accused-appellant, as stated above.
8. Learned counsel for the appellant argued that the accused-appellant is mentally upset but this aspect of the case has not been considered by the trial Court and at present the accused- appellant is suffering from mental disease. He further argued that the appellant was . Charged in a delayed F.I.R. After due consultations and deliberations. He further contended that the eye- witnesses being closely related to the deceased and also inimical towards the appellant, therefore, the conviction of the appellant could not be maintained on their evidence. Be submitted that independent corroboration of the eye-witnesses account is not forthcoming. He contended that the recovery of pistol as weapon of offence and empties of .30 bore from the spot are planted one.
He submitted that the medical evidence is also not supporting the ocular evidence. He submitted that the prosecution also did not prove the motive as alleged in the F.I.R. And there is no evidence of preplanning. He submitted that the only thing in the account of convict-appellant is his abscondence but the same has been explained and even otherwise absconsion alone is not sufficient to base his conviction, therefore, he deserves for acquittal. The learned counsel lastly argued that if the motive advanced by the prosecution is accepted then the trial Court was required to have treated the same as the mitigating circumstance, keeping in view the facts and circumstances of the case because inference can be drawn that the offence was committed as a result of sudden and grave provocation.
9. On the other hand learned AAG appearing on behalf of the State argued that throughout the trial the accused-appellant has not taken the plea of mental disorder, therefore, at this stage, he cannot plead the same with further submission that no evidence has been produced in support of his such plea. He next argued that the appellant is the single accused charged directly in the F.I.R.
By name and that the ocular acconnt is corroborated by the medical evidence, recoveries from the spot, motive, absconsion and positive FSL result. He further argued that the appellant is charged by name in the F.I.R., being brother-in-law of the complainant, was known to the eyewitnesses and there is no question of misidentification or a false charge and the appellant was rightly convicted and sentenced. He lastly argued that when the prosecution proved its case through reliable and trustworthy evidence beyond any doubt inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case and normal penalty of death can be imposed on the assailant if there were no mitigating or extenuating circumstances for lesser penalty.
10. We have considered the arguments raised by learned counsel for the parties and have gone through the entire record with their valuable assistance.
11. At the very outset and for, the first time the learned defence counsel draw our attention to the plea of mental disorder of the appellant raised by him in the grounds of appeal. We have thoroughly and carefully gone through the material available on record. It is evident from the record that the appellant neither at the time of framing of charge nor at the time of recording his statement under section 342, Cr.P.C. Uttered a single word regarding his mental disease, if any, nor brought into the notice of trial Court by submitting an application to verify the same by way of constitution of Medical Board rather at the time of framing of charge denied the charges levelled against him and opted to face the trial, meaning thereby, throughout the trial he was in complete senses. Till today, he has not brought it on record any proof regarding- his mental disorder; therefore, his plea at this belated stage cannot be considered.
12. The perusal of record would show that the report of the occurrence was lodged by Mash Bibi'
Complainant (P.W.3) within about two hours of the occurrence. The place of occurrence is situated in a far-flung area at a distance of 24/25 kilometers from the police station with no better transport facility, therefore, delay in lodging of thereport, in such circumstances, was of no significance> and that too when the witnesses were not cross examined on the point of such delay nor any Suggestion was put to them regarding deliberations and consultations. Statements of Mash Bibi complainant (P.W.3), and Mst. Lubna (P.W.4) are consistent on material points. The presence of P.W.3, P.W.4 seems to be natural one being inmates of the house and- their presence on the spot cannot be doubted as occurrence took place inside the house. They deposed the ocular testimony and supported the prosecution version. Despite that they were subjected to cross examinations but nothing material could be brought out nor any doubt could be created in their. Evidence. They stood firm and their veracity could not be shaken. The name of the eye-witness 'and role of accused-appellant for firing at both the deceased have been mentioned in the first report, which lend support from the medical evidence furnished by Dr. Sana Ullah P.W.7 and Dr. Mujib ur Rehman P.W.14. Nothing was extracted from their mouths to create doubt regarding their presence on the spot and even a suggestion was not put to them regarding their presence on the spot.
12(sic). We have perused the medical reports, injury sheets and inquest reports of both the deceased, which show that the injuries on the dead bodies of the deceased were of fire-arm. The injuries on the persons of deceased were attributed to have been caused at the hands of accused-appellant; therefore, medical evidence also supports the ocular account.
13. The appellant was the brother-in-law of the complainant, while Mst. Lubna P.W.4 is his niece, therefore, the appellant was known to E them, so there is no question of misidentification.
14. Learned defence counsel submitted that now it has been settled that Courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some independent and unimpeachable piece of evidence or circumstance in the case but in the present case all the eye-witnesses are closely related to the deceased and their presence on the spot is not natural, therefore, there is possibility of false implication of the accused with consultation and deliberation, but his this submission is not convincing one because the same has since long been discarded by the apex Court. It is settled proposition of law by now F that interested witness is the one who has an animosity for false charge Mere relationship of a witness to the deceased is not enough to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. In the instant case, we find that, no doubt, Mash Bibi P.W.3 and Mst. Lubna P.W.4 were closely related to the deceased as well as to the appellant and may be they were somehow interested witnesses but their testimony lends ample support from the statement of Muhammad Razaq P.W.13, who is father of the deceased Bahadar Zeb as well as accused-appellant. Recovery of empties of .30 bore from the spot further corroborate the testimony of the two eyewitnesses coupled with the recovery of .30 bore pistol as weapon of offence from the house of accused at his pointation. The apex Court in number of cases has held that statement of a witness cannot be disbelieved solely on the plea that he is related to the deceased. An interested witness is a person who has a motive to falsely implicate a person. Viewing the testimony of these eye-witnesses in the light of aforesaid criteria, we do not find their testimony as tainted or they had any motive to falsely implicate the appellant nor any enmity worth the I name has been brought on record to show that they were implicating the appellant-convict in this case falsely. In this context reference may be made to Sharafat Ali v.
The State, 1999 SCM R 329.
' Certainly no plausible reason has been established by the defence to indicate why the complainant and eye-witness would substitute the appellant by leaving real culprits. The testimony of eye-witnesses is natural and convincing one and their statements find ample corroboration from other evidence, hence, in our view, they were rightly believed by the trial Court.
15. The Investigating Officer P.W.14 also secured blood-stained earth, spent bullet and empties of 30 bore from the crime spot. Though, internal examinations of the dead bodies were not conducted but when the cause of death is apparent then non-conducting of post-mortem K examinations is not fatal to the prosecution case. In Malakand and Kohistan Area, internal examination of the dead body is not conducted on the request of the legal heirs of the deceased because of their old L tradition. In such a situation, non-conduct of post mortem is of no consequence, hence, not fatal to the prosecution case.
16. Learned defence counsel pointed out some discrepancies in the statements of prosecution witnesses but the same being minor in nature are of no consequences because no one can remember the minute details nor photographic view can be given in such state of fear and striking situation, most particularly, when statements of witnesses were recorded after lapse of sufficient time as the occurrence took place on 26-3-2007 while statements of P.Ws. Recorded in year 2011.
17. The unexplained disappearance of the appellant from the ordinary place of residence immediately after the occurrence knowingly that he was being charged for the murder of his wife and real brother, particularly, his non-participation in their funeral ceremony, would tantamount to deliberate absconsion with guilty mind, therefore, it would be another circumstance to establish the culpability of the appellant and we are fully agreed with the opinion expressed by the trial Court.
17(sic). The prosecution fully established the guilt of convict-appellant Rehmat Zeb, who is singly charged for firing at both the deceased. There is no possible reason to believe that the complainant party would let-free the real culprits and involve the present appellant because substitution in place of the real culprits, in any case, is very rare phenomenon, which is also not borne out from the record. In the facts and circumstances of the case, learned trial Court has rightly convicted the appellant.
18. The last argument of learned counsel for appellant that the trial Court was required to have awarded lesser penalty keeping in view the motive advanced by the prosecution that the appellant was suspecting the deceased Bahadar Zeb to have illicit relation with his wife is not convincing one because the primary sentence for the offence of murder provided in section 302(b), P.P.C. Is death, however, the lesser sentence for life imprisonment may be awarded only if there exists some mitigating or extenuating circumstances. In the instant case, it has been established on record that the convict-appellant entered into the house duly armed with pistol and found both the deceased as usual as his brother was sleeping while his wife was offering "isha" prayer, so, there was no reason for grave or sudden provocation because the convict did not see both the deceased in a situation which could have prompted him to kill them. It has also been proved on record that incident was pre-planned because the appellant when entered into the house acted brutally and fired repeatedly at both the deceased at different places. P.W.3 and P.W.4 being inmates of the house were natural witnesses. They have given straightforward and consistent versions of the occurrence. Supported by the medical evidence recovery of incriminating articles and considerable absconsion of appellant, so, all this shows that the appellant had acted in a callous and cruel manner while taking the lives of his brother and wife, particularly, when one was sleeping while the other was offering "isha" prayer, therefore, the case of appellant does not fall under the category of sudden or grave provocation. Besides the above, the appellant had not taken the plea of grave or sudden provocation in his statement recorded under section 342, Cr.P.C. And flatly denied the allegation.
Considering the case from all angles, we are of the considered opinion that normal penalty of death sentence imposed by the trial Court was proportionate to the gravity of the offence. The appeal filed by the appellant Rehmat Zeb being meritless is dismissed and the murder reference is answered in positive and death sentence is, thus, confirmed.