' WALI MUHAMMAD KHAN, J.-- Through this criminal appeal Said alias Superdent, convict-appellant (hereinafter to be called as the accused) has challenged his conviction and sentence of life imprisonment under section 302, P.P.C. For the murder of Abdus Sattar deceased by firing at him with a pistol on 18-1-1984 at 2200 hours in the limits of village Bahloli. The complainant Samar Gul brother of the desceased has also filed Criminal Revision No, 14 of 1988 for the enhancement of the sentence passed against the accused from life imprisonment to death sentence and also for the reasonable increase in the amount of compensation awarded. Through this single judgment both the appeal and revision are being disposed of.
2. The facts of the case briefly are that on the day of occurrence viz. 18-11984, accused visited the house of the complainant party at Decgarwela for spending the night with them; that after serving him with tea and food just before going to sleep, the accused expressed his desire to go out to the field for easing himself and the complainant Samar Gul (P.W.5) alongwith his broher Rehmat Gul (P.W.6) and Abdus Sattar deceased accompanied him; that when they reached the field, the deceased and the accused were going ahead while the complainant and P.W. Rehmat Gul followed them when in the meantime the accused fired two shots with his pistol at Abdus Sattar deceased with which the deceased was hit and fell to the ground; that the complainant and his brother Rehmat Gul (P.W.6) tried to apprehend the accused but they were also fired at ineffectively and the accused decamped from the spot. The complainant left the dead body on the spot and rushed to the Police Station Khanmai where he made the report to Muhammad Sher Khan (P.W.7) the then S.H.O. Khanmai who recorded the same vide F.I.R. Exh.P.A. Correctly. About the motive it was stated by the complainant in the F.I.R. That they have no enmity with any body but suspected that Taza Gul, father-in-law of the deceased had enmity with the accused.
3. On completion of the report vide F.I.R. Exh.P.A., the Investigating Officer proceeded to the spot for the investigation of the case. On reaching there he prepared injury sheet Exh.P.D. And inquest report Exh.P.D./1 of the deceased and deputed Gular F.D. (P.W.10) to keep watch over the dead body during night, as there was no means for the transportation of the dead body to the mortuary for post- mortem examination. The Investigating Officer, thereafter - inspected the spot and prepared the site plan at the instance of the complainant and the eye-witness. He secured blood-stained earth from the spot and recovered an empty of .32 bore pistol Exh.P.1 and took them into possession vide memo. Exh.P.C. The F.C. Brought spent bullet Exh.P.2 extracted from the dead body of the deceased which had been handed over to him by the doctor and the same, on production, was taken by the Investigating Officer vide memo. Exh.P.C./1. The blood-stained earth was sent to the- Chemical Examiner for examination and his report to this effect is Exh.P.Z. Efforts for the arrest of the accused were made by the police but he was not traceable and consequently warrant Exh.P.E./1 for his arrest under section 204, Cr.P.C. Was obtained from the Illaqa Magistrate and was entrusted to Muslim Khan (P.W.9) for execution, who made a search for him in his own village and in the surrounding area but could not succeed in arresting him as he had gone into hiding after the commission of the offence. Accordingly he returned the warrant unnerved with his report bearing his signature as well as the signatures and thumb-impressions of the elders of the locality in corroboration of his report. Thereafter proclamation Exh.P.F./i under section 87, Cr.P.C. Was also obtained from the Illaqa Magistrate and entrusted to the same F.C. For execution according to law.
The F.C. According to his version, pasted one copy of the same on the outer door of the house of the accused, one copy on the notice board of the Court concerned and returned the third one with his report. Since the accused did not surrender in obedience to the warrant of arrest and the proclamation referred to above, on the completion of the investigation of the case, challan under section 512, Cr.P.C. Was submitted by Muhammad Sher Khan S.H.O. (P.W.7) before the 11laq Magistrate. During the course of proceedings under section 512, Cr.P.C. The accused surrendered himself to Fida Muhammad Khan then S.H.O. P.S. Khanmai (P.W.8) On 16-11-1986 who arrested him and submitted supplementary challan against him.
4. After observing the formalities of section 265-C, Cr.P.C. The accused was charge-sheeted under section 302, P.P.C. And under section 307, P.P.C. To which he pleaded not guilty and claimed trial.
Trial commenced.
5. The prosecution produced Murtaza (P.W.1), Sahib Rehman (P.W.2).. Gulzada (P.W.3), Dr. Muslim Khan (P.W.4), Samar Gul complainant (P.W.5), Rehmat Gul (P.W.6), Muhammad Sher Khan, S.H.O.
(P.W.7), Fida .Muhammad Khan S.H.O. (P.W.8), Muslim Khan (P.W.9) and Gulzar Ali F.C. (P.W.10) in support of the prosecution version and abandoned the remaining P.Ws: being unnecessary. Of them Samar Gul complainant (P.W.5) and Rehmat Gul (P.W.6) are eye-witnesses of the occurrence whereas the others are, more or less, of formal nature and reference to their statements has already been given in the introductory part of this judgment. After the close of the prosecution evidence the accused was questioned under section 342, Cr.P.C. To explain the material brought against him in the prosecution evidence and he denied all the questions put to him. About his abscondence he submitted that he was earning his livelihood through daily wages labour at Karachi and when he came to know about the false charge against him, he surrendered himself voluntarily to the local police. About deposition of the eye-witnesses against him he stated that they being brothers of the deceased were interested witnesses and not worthy of credence. He did hot like to produce defence but recorded his statement on oath under section 340(2), Cr.P.C.
Wherein he deposed that he did not commit the murder of Abdus Sattar deceased and he was falsely implicated by the P.Ws. Due to his money dispute with Taza Gul father-in-law of the deceaseed.
6. Dr. Muslim Khan (P.W.4) conducted the autopsy on the dead body of Abdus Sattar deceased aged about 20/22 years on 19-1-1984 at 8-20 a.m. And found the following injuries on his person:- ' External Examination
(1) Fire-arm inlet wound of about 1/4" in diameter on the left cheek just below the left eye with charring marks present.
' Internal Examination ' Skull fractured. Brain and its membranes injured. Maxillary bond left side fractured.
' In his opinion the deceased died due to fire-arm injury to the cheek which has injured the brain matter. Cause of death: Shock and haemorrhage. One bullet recovered from the skull cavity back side, handed over to the police. Probable time between injury and death: within one hour. Probable time between death and post-mortem examination within 6 to 12 hours. His report is Exh.P.M. Which is correctly signed by him.
7. The complainant Samar Gul (P.W.5), the brother of the deceased in his deposition in Court reiterated his version as recorded in the F.I.R. According to him he alongwith his brother Rehmat Gul (P.W.6) and Abdus Sattar deceased accompanied the accused to the field who wanted to answer the call of nature and that when they reached the spot the deceased and the accused were ahead of them and the accused fired two shots at the deceased hitting him on his head and fired at them ineffectively when they were trying to apprehend him. In his statement before the Court he introduced a different motive, disclosed to them by Mst. Parveen daughter of Taza Gul, who was earlier betrothed to Abdus Sattar deceased and after his demise was married to his younger brother namely Ajmal. She informed them that the accused had tried to develop connection with her and on his failure to succeed in getting her hand he did away with the deceased to whom she was already engaged. His brother Rehmat Gul (P.W.6) corroborated his version on all material particulars. On the appraisal of evidence so produced by the prosecution, the learned Additional Sessions Judge-I, Charsadda, feeling convinced about the guilt of the accused, convicted him under section 302, P.P.C. For the murder of Abdus Sattar deceased and sentenced him to life imprisonment with a fine of Rs,10,000 or in default of payment. Of fine to suffer six months' R.I. He was also ordered to pay Rs,10,000 as compensation to the L.Rs, of the deceased, or in default to undergo six months' S.I. However, the learned Additional Sessions Judge acquitted the accused of the charge of ineffective firing at the complainant and P.W. Rehmat Gul. Hence the instant appeal and revision.
8. We have heard Mian Shakirullah Jan, Advocate learned counsel for the accused-appellant, Mian Muhammad Ajmal, Additional Advocate-General for the State and -Mr. Asadullah Khan, Advocate, learned counsel for the complainant and have also perused the record of the case with their assistance.
9. The thrust of the arguments of the learned counsel for the accused is that the occurrence took place during the dark hours of the night; that the presence of Samar Gul complainant and Rehmat Gul P.W. At the time of occurrence is not natural; that the accused was not charged in the F.I.R. By name; that the prosecution has not satisfactorily proved that alias of the accused was Superdant; that the circumstantial evidence belied the story of the prosecution inasmuch as only one empty was recovered from the spot as against the four shots, attributed to the accused by the prosecution witnesses and that the stomach of the deceased was found empty by the doctor in contradiction of the consistent statement of the P.Ws. That they had taken tea and meals together prior to the occurrence and that the prosecution evidence was highly interested and had charged the accused at the instance of Taza Gul father-in-law of the deceased with whom he had money dispute. The learned Additional Advocate-General and the learned counsel for the complainant controverted these submissions and argued that the parties are related to each other inasmuch as two daughters of Taza Gul father-in-law of the deceased, were married to Taj Malook and Saiful Malook brothers of the accused prior to the occurrence and as such there was no motive for the complainant party to falsely implicate the accused for the murder of the deceased in substitution of real culprit; that the accompanying of the complainant and his brother Rehmat Gul alongwith the deceased and the accused to the field was natural because it was night time and in normal course they had no business to attend to at that odd hours; that the accused was directly charged in the promptly lodged F.I.R. Without any loss of time; that the circumstantial evidence fully corroborated the prosecution story and that the allegation of the accused regarding his alleged money dispute with Taza Gul has not been satisfactorily established and that the abscondcnce of the accused for nearly two years and ten months was further corroborative of the guilt of the accused in the instant case.
10. We have anxiously considered the arguments of the learned counsel only either side. No doubt the eye-witness account has been supplied by the two brothers of the deceased but the mere fact that the witnesses are closely related to the deceased cannot per se cast any aspersion on their veracity. According to several judicial pronouncements a witness can be termed interested only if he has an axe to grind of his own against the accused in falsely implicating him. In the instant case, the accused has failed to alleged muchless prove any motive against the complainant. The reason advanced by him that he had some money dispute, with Taza Gul on whose pursuasion charge was levelled against him, does not stand to reason firstly, because neither there is any evidence to establish the so-called money dispute with Taza Gul, secondly that Taza Gul cannot wield so much influence over the complainant party as to pursuade them for levelling such heinous charge against the accused falsely and thirdly that the complainant party would spontaneously agree to substitute the accused for the real culprit who had done away with their brother Abdus Sattar deceased. We, therefore, hold that the complainant Samar Gul (P.W.5) and Rehmat Gul (P.W.6) do not fall within the category of interested witnesses and their deposition can be accepted if they arc found to fit in with the other circumstances of the case.
11. As stated earlier the complainant Samar Gul and P.W. Rehmat Gul were present on the spot and saw the accused firing at the deceased. Their version is corroborated by the recovery of .32 bore empty from the spot and the recovery of spent bullet Exh.P.2 extracted from the dead body of the deceased by Dr. Muslim Khan (P.W.4). The occurrence was reported before the police by Samar Gul complainant (P.W.5) without any waste of time, in the police station charging the accused directly for the murder of the deceased when the dead body was still lying on the spot for firing at the deceased with pistol. The mere fact that one empty was recovered from the spot whereas four shots were attributed to the accused, cannot affect his veracity in any way because sevral persons were attracted to the spot soon after the occurrence and the possibility of some one removing the empty or its being imbedded in the field with the movements of the people cannot be excluded. No doubt the stomach of the deceased was found empty by the Doctor at the time of post-mortem examination but there is no evidence to show as to at what time the deceased had taken his last meals and consequently this fact by itself cannot create any doubt about the veracity of the eye- witnesses. Charring marks were found by the doctor round about the fire-arm inlet wound of the deceased which corroborate the version of the prosecution C witnesses that the deceased was fired at from close range. This excludes the theory of the defence that the deceased was going all alone and some body who had waylaid him fired at him and killed him, because in that situation the firing could have been from a distance without causing any charring marks. We,are also not pursuaded to believe that the accused and the deceased were all alone at the time of occurrence because in that event the complainant party could only get the knowledge in the morning and not immediately after the occurrence. The abscondence of the accused for more than 2-1/2 years which has not been satisfactorily explained is another material circumstance corroborating the prosecution story. We have, therefore, no doubt in our mind that the accused is responsible for the murder of Abdus Sattar deceased and that he was rightly convicted and sentenced by the learned Additional Sessions Judge.
12. As regards the sentence learned trial Judge has not given any reason for awarding the lesser sentence of imprisonment for life provided under the law. However, we are conscious of the fact that no positive motive was established against the accused for the murder of the deceased and in view of the judgment of the Supreme Court in cases reported as 1984 SCMR 837, 1984 SCMR 1184 and 1985 SCMR 495, when the motive is shrouded in mystery the capital sentence is normally not awarded and this might have influenced the learned trial Judge not to award the capital sentence in view of the peculiar circumstances of the case. For this very reason we are also not inclined to enhance the sentence and feel that the sentence already awarded amply meets the ends of justice.
13. For the foregoing reasons both the appeal as well as the revision petition arc hereby dismissed. .