NAZIR AHMAD BHATTI, J.-Vide F. I. R. No. 243, dated 8-9-1976 of Police Station Tehsil Charsadda, District Peshawar, lodged by Fazli Hai (P. W. 1) on the abovesaid date, a Case under section 302/34, P. P. C. Was registered against the accused-appellant Shakar, his two other absconding co- accused Muhammad Yunus and Meber Padshah, for committing the murder of Muhammad Idris, soil of Fazli Hai (the marker of the F. I. R.) on 8-9-1976 at about 7-00 a. m. In furtherance of their common attention by firing at him with fire-arms: The accused appellant Shakar alongwith his two> other co-accused named above remained absconders, but after more than five years, he was arrested on 12-6-1981 by the police and was charged and tried by Mr. Khan Akbar Khan (as he then was), Additional Sessions Judge, Charsadda. He pleaded not guilty and claimed trial. During the trial, the learned Additional Sessions Judge was transferred and his successor-in-office, Syed Shafqat Ali Shah, after having found him guilty of the offence charged with, convicted him under section 302, P. P. And sentenced him to the normal penalty of death. He was also fined Rs. 10,00;) or in default to undergo R.1. For three years, and out of the fine imposed, if realised, rupees 4,000 were ordered to be paid to the legal hears of the deceased as compensation under section 544-A, Cr. P.
C.
2. Feeling aggrieved from the said order, the accused appellant Shakar has come up to this Court through Criminal Appeal No. 145 of 1982. The matter has also been referred to us for confirmation of the death sentence awarded to the accused appellant in a shape of a Murder Reference No. 8 of 1982 and we propose to dispose of both these matters through this single judgment.
3. According to the prosecution story facts of the case are that on the day of occurrence at about 7-00 a. m., the complainant Fazli Hai and P. Ws. Mst. Shamsul Haya and 1Vst. Yasmin were present in their house in order to answer the call of nature, when in the meantime, they heard noise outside the house in the street; that when they came out they saw the accused appellant alongwith the absconding co-accused altercating with the deceased Muhammad Idris; that during the altercation, all the three accused opened firing at the deceased with which he was hit and fell down on the ground and breathed his last on the spot. Motive for the offence, as alleged in the F. I.
R. Was that one year prior to the present occurrence, the complainant Fazli Hai, had gifted 8 jaribs of his landed property by way of mutation in the names of his daughters, namely Mst. Shamsul Have and Mst. Shamsul Wara, on which absconder Muhammad Yunus was annoyed and he suspected deceased Muhammad Idris to have played a role in the said transaction of gift of land which was, during this period, in his possession.
4. Thereafter the complainant, Fazli Hai (P. W. 1) had left for the policd station and lodged the report (Exh. P. A.) which was recorded by Ahmad Baksh S. H. O. (P. W. 11) of the said police station. On compel--tion of the report, the Investigating Officer (Ahmad Bakhsb) (P. W. 11) left for the spot of occurrence. On reaching there he found the dead body of the deceased and prepared the injury sheet (Exh. P. C.) and inquest report (Exh. P. C/1) of the deceased and despatched the same to the mortuary for autopsy under the escort of Nausherawan, Foot Constable (P. W. 9). This prosecution witness had inspected the spot, prepared the site plan (Exb. P. D.) with all its foot notes and drawings correctly thereon. From the spot, at the instance of the P. Ws, he- had taken into possession blood-stained earth vide memo. (Exh. P. E-2) and had sealed the same into a parcel vide memo. Exh. P. E. He also recovered from the spot 6 pellets (Exh. P. 7) four card boards (Exh. P. 8) and to this effect prepared memo. (Exh. p. E/3). After the autopsy, P. W. 9 (Nausherawan) F. C. Had brought from the Doctor a shirt Exh. P. 1, shalwar (Exh. P. 2), Jacket (Exh. P. 3) all blood-stained and having corresponding cut marks belonging to the deceased alongwith a sealed bottle (Exh. p. 4) containing pieces of led (Exh.,P. 5) and the I. O, took the same into possession vide memo. (Exh. P.
E/1).
5. In order to bring home charge to the accused appellant, the prosecu--tion examined as many as 11 P. Ws. Out of whom, P. W. 8, Dr. Abdul Hameed, who was, during the days of occurrence, posted as Medical Officer, Civil Hospital, Charsadda, bad performed the post-mortem examina--tion on the dead body of deceased Muhammad Idris on 8-9-1976 at about 9-45 a. m. And had found the following external/internal injuries External Examination:
(1) Fire-arm inlet wound right side of the head near right eye-brew, size --" diameter.
(2) Fire-arm outlet wound back of the left ear size 1" diameter.
(3) Fire-arm inlet wound front of the right side of the chest size 1/3" diameter.
(4) Fire-arm outlet would back of the right side of the chest size diameter.
(5) Fire-arm inlet wound front of the right upper arm size diameter.
(6) Fire-arm outlet wound back of the right upper arm size 1" diameter.
The Doctor had recovered a piece of bullet from the chest of the decea--sed which weighed 4 grains which was sealed and handed over to Police Internal Examination: Scalp and skull, membranes and brain, walls, ribs, pleurae, right lung and blood vessels all injured.
According to the report of the Doctor, stomach of the deceased was normal and half full and the death had occurr--ed as a result of fire-arms injuries causing damage to the brain matter, right lung, blood vessels and fracture of the right humorous bone all leading to severe internal and external bleeding, shock and death. In his opinion. The time between the injury and death was 10 to 30 minutes and between death and post-mortem examination 3 to 6 hours.
6. The first and the fore-most point in this case is that the complainant and the accused parties are closely related to each other. The deceased Muhammad Idris and the absconding accused Muhammad Yunus are step--brothers inter se, and the complainant Fazli Hai, who has since died, was their father. P. W. Mst. Shamsul Haya is the real sister and P. W. Mst. Yasmin is the widow of the deceased Muhammad Idris, whereas the present accused-appellant Shakar Khan is the son of the real maternal uncle and the other absconding accused Meher Badshah is the son of real sister of the other absconding accused Muhammad Yunus. Immediately after the occurrence, all the three accused absconded, and, out of whom, Muhammad Yunus and Meher Badshah are still absconders. Complainant Fazli Hai died in 1979, about three years after the making of the F. I. R. He definitely knew that his absconding son, Muhammad Yunus, could be awarded the penalty of death, whereas his other son Muhammad Idris was also murdered. He would have lost both the sons and if this offence had been committed by a person other than the accused named in the F. I.
R., complainant Fazli Hai would surely have made amendment in his report and would have at least disclosed his suspicion to the police. His silence over this matter, for three years after levelling the charge shows that he had definitely seen his absconding son committing the offence. This fact, alone, would prove that the eye-witnesses are truthful persons and they had actually seen the occurrence with their own eyes. No father would bear the loss of a son by his own testimony if it were not true.
7. The learned counsel appearing on behalf of the convict-app e pant has contended that two female eye-witnesses are more closely related to the deceased and they are highly interested witnesses. But this contention is not tenable, for the reason, that although these two female witnesses are more closely related to the deceased than the accused, but still Mst. Shamsul Haya is the step-sister of accused Muhammad Yunus, and if she had not witnessed the occurrence, then she would not have charged him, simply for the reason that she would have also not liked to lose a brother, although a step one, whop she had already lost her real brother. Not only that but their ocular, evidence is also corroborated by the medical evidence as would be discussed hereafter.
8. The deceased sustained three inlet injuries and dimensions of all o f them are different which shows that three types of weapons were used in the commission of the offence. The learned counsel for tile convict-appellant has contended that either these three injuries were caused with one automatic weapon or at the most by two weapons. His argument is that the recovery of pellets from the spot shows that one of the assailants was most probably in possession of a shot-gun and that no injury on the person of the deceased appears to have been caused by a shot-gun. His other contention is that the recovery of some skin from scalp and brain matter from point No. 9 also did not fit in the prosecution story as disclosed in the site plan 1-Iii conten--tions are that according to the site plan Exh. P. D., the appellant and accused Muhammad Yunus are said to have fired from point No 5 at the deceased who was present at point No. 1, that absconding accused Meher Badshah is reported to have fired from point No. 6 at the deceased that point No. 5 being to the north of point No. 1 the scalp skin could not fly away to point No. 9 and that the position of injuries shows that it could also not so happen by the shot fired from point No. 6. So far as the first contention of the convict-appellant's counsel is concerned, it may be said that if an automatic weapon had been used, then the deceased would have either fallen or turned himself on receipt of the first shot and in that case he could not have received all the three shots on the front side. So this theory is out of question. So far as the second contention is concerned, it may be said that it is very clear that if somebody fired from point No. 6, than skin of scalp could be found at point No. 9, because this point and the peace, where the deceased is shown, are in a direct line. It can, therefore, very safely be concluded that three different weapons were used in the commission of the offence and the recovery of 6 pellets and card board from the spot shows that a '12 bore shot- gun was also used in the crime, and injury No. 1 was caused by this weapon as the dimension of this injury amply coincides with the cartridges containing L.G. And S. G. Pellets It is noteworthy that the card boards recovered from the spot show that two cartridges each of L. G. And S. G. Grains were fired at the place of occurrence.
9. It was further contended by the learned counsel for convict-appellant that the circumstance of altercation between the deceased and tile accused party was introduced only to show the presence of the eve-witnesses at the spot, otherwise the distance between the place of occurrence and the house of complainant being 92 paces, the altercation, even if it actually took place could not be heard by the witnesses, but this contention is disproved by the eye-witnesses account. The eye-witnesses of the occurrence have given a very detailed story in a very natural manner in this respect. Both the female eye--witnesses have narrated the same story as given by the lodger of the F. I. R. Fazli Hai, in verbatim and there is no difference in their testimony. His other contention was that the distance being 92 paces away, the crime was completed before the arrival of the witnesses at the spot and that independent persons were residing near about the place of occurrence but they have not been produced and the persons who have appeared as witnesses reached the spot when the offence had already been completed. These contentions are also without any force, for the reason, that the story of the offence, as disclosed by the eye-witnesses, is not only supported by the circumstanial evidence but also by the medical evidence. Relationship, per se, is no groan for discarding the evidence of eye-witnesses. Moreso, for the reason, that the witnesses are also related to the accused party. It is a general tendency in our country of which, judicial notice can now be taken, that persons, not connected with the parties or with the offence, do not come forward to testify about the offence, simply for the reason that they are afraid of creating A enmities for themselves from the side against whom they depose and for fear of attending the police stations where they are generally not humanly treated and in Courts wasting their precious time. The factum of presence of independent persons near about the place of occurrence does not, in any way, cast any doubt on the evidence of interested witnesses, specially when the latter is corroborated by other evidence and rings true.
10. The prosecution has advanced the motive that Fazli Hai, the father absconding-accused Muhammad Yunus, had transferred his landed property to his unmarried daughters from another wife. That landed property was in the possession of Muhammad Yunus absconder and he suspected that the deceased was instrumental in the transfer of this property and for that reason he murdered him. The learned counsel for the convict-appellant has conten--ded that no documentary evidence as produced by the prosecution to prove the alienation of land and hence the motive was not proved. In support of this contention, he has relied upon the case of Habibullah and others v. The State (PLD 1969 SC 127) wherein it was held that murders may be committed wanton--ly or without motive, but where motive, alleged by the prosecution, is found to be false, evidence of witnesses on premises of a false motive is to be scrutinised. However, it may be stated that a father would not create a false motive in order to implicate his own son. The motive, in the case in hand, as alleged in the prosecution version stood proved from the very F. I. R. Lodged by the father. Moreover, it is not necessary that there may be a motive for the commission of an offence, and when a charge of murder) is made against a son, the latter could be punished even without a motive to prove the offence against him.
11. It has further been alleged by the learned counsel representing the accused-appellant that Mst.
Yasmin, widow of the, deceased, has not supported in toto the prosecution case inasmuch as she has stated in her cross-examination, while appearing as P. W. 7, that they heard the noise and a fire shot on which they came out from their house. We have given our anxious thought to this statement of a 1st Yasmin and we have come to the irresistible conclusion that she has made an uncalled for concession to the accused appellant as it has come out from her mouth in her cross- examination. Moreover, she being widowed at a very young age with no children from the deceased would not have that much interest in the prosecu--tion of the accused as his real sister, or for that matter, his father would have. At the time of trial of the appellant Shakar Khan, she was living with her brother and mother and it appears that she has severed all her relations with the complainant party. She would have been least interested in the outcome of the case. Most probably, she may have remarried and lost all interest in the deceased. Her evidence was recorded more than five years after she became a widow.
12. It was next contended by the learned counsel for the accuse appellant that although the absconding accused Muhammad Yunus may be having some grudge against, or motive to kill, the deceased Muhammad Idris, but the present appellant had no such intention or motive as he was not affected by the transfer of the landed property of the complainant Fazli Hai (since dead) to his daughters. Here again, the learned counsel for the appellant has proceeded on surmises only. It is admitted that Fazli Hai, maker of the F. I. R., had children from two wives. It is but natural in our society that in such a case, the relations of wives would have more sympathy with the children of the wife with whom they are more closely related. The appellant being the son of real maternal uncle of absconding accused Muhammad Yunus would, naturally, be more inclined to help the son of his paternal aunt. Even on this score alone, his participation in the, commission of offence stood established.
13. Lastly, there is the plea of alibi put forth by the appellant. He has taken up the plea that during the days of occurrence, he was out of the country. He has stated that he bad gone to Afghanistan on 20-8-1976 and had returned to Pakistan on 16-9-1976. In this respect, he had produce one defence witness Rashid Gul, an official of Passport Office atTorkham to prove this factum. He had advanced this plea of alibi to show that he was not present in the country during the days of occurrence and that, therefore, he could not have committed the offence. However, this plea of alibi is also very doubtful for manifold reasons. It is common knowledge that certain tribes living on both sides of the border between Afghanistan and Pakistan freely cross the border without any passport or travel documents. It is also a fact that there are many secret routes of entry and exit to and from Afghanistan. Moreover in the passport, produced by the appellant at the trial, there was no entry of any visa issued to him by the relevant authorities for visiting Afghanistan. There is no conclusive proof which may exclude-every possibility of doubt that appellant was not present in Pakistan during the days of occurrence. No doubt, it has been held in the case of Aminullah v. The State (PLD 1982 SC 429), that onus of proving affirmatively plea of alibi does not lie upon accused to extent and sense it lies on prosecution to prove guilt of accused, but the prosecution evidence, produced in this case, clearly brings home the guilt of the accused and hi presence at the spot. As such, the plea of alibi is of no avail to the accused-appellant. With utmost respect to the principle enunciated in the aforesaid judgment, we are also conscious of the provisions of section 103 of the, Evidence Act, whereby the burden of proof as to the existence of any particular fact lies on that person who wishes the Court to believe in it existence and the appellant has failed to discharge this duty. Therefore, the plea of alibi is not acceptable.
14. The upshot of the above discussion is that we would maintain the conviction of the accused- appellant and would confirm the sentence of death and fine awarded to him by the learned trial Judge. The appeal of the accused appellant Shakar Khan consequently fails and is dismissed.