' S. IBNE ALI, J.--- Appellant Banaras Khan son of Hayat Khan was tried by the Sessions Judge, Abbottabad for the offence under section 302, P.P.C. For having caused the murder of Dilawar Khan and, on being found guilty on the said charge was convicted under section 302, P.P.C. And sentenced to life imprisonment plus a fine of Rs,10,000 or in default to undergo further R.I. For two years, vide the judgment of Sessions Judge, dated 2-10-1988. It was directed that half of the amount of fine, if recovered, shall be paid to the legal heirs of the deceased by way of compensation. The appellant assails his conviction and sentence through this appeal, while Ali Akbar complainant has also filed a revision petition seeking enhancement of sentence as well as compensation. This judgment shall dispose of both the appeal and the revision petition.
2. The prosecution case as disclosed at the trial is that on 31-8-1985, Ali Akbar (P.W.3) complainant, along with his father Painda Khan was cutting grass from field owned by them as fodder for their cattle and nearby his deceased brother, Dilawar Khan, after irrigating his Mash crop, was also busy cutting grass. And close to the deceased, two others, namely, Kala son of Said Khan and Kala Khan son of Khadi Khan (P.W.8), were also working. At about Degarwela, a shot rang out, and soon thereafter a shout was raised by Kala Khan son of Khadi Khan (P.W.8), addressing Ali Akbar (P.W.3) that Banaras accused had murdered Dilawar Khan deceased by firing at him with .12 bore shotgun.
In response to the outcry, Ali Akbar (P.W.3) together with his father and other persons arrived at the spot and found the deceased having already breathed his last, and his dead body lying in a pool of blood with pellets marks on front of his chest, neck, face and forehead. The accused alongwith weapon of offence decamped towards his village Bhokera. The occurrence was seen by the aforesaid witnesses. The motive for the offence is that Banaras accused asked for the hand of a daughter of Sikandar for his son Shah Alam, but the complainant got her engaged with his sister's son. This gave unbrage to the accused and resulted in the murder of the deceased at his hands.
While carrying the dead body of the deceased on cot from spot to Rajoya village and therefrom on jeep, Ali Akbar (P.W.3) complainant appeared at Police Station Havelian, on the same day at 9 p.m.
And gave his report (Exh.P.A.) by way of F.I.R. Narrating the above facts in substance. This, in short is the prosecution story.
3. After recording the above report, S.I. Zaffar Khan (P.W.9), then Additional S.H.O. Prepared the injury sheet (P.W.9/1) and inquest report (Exh.P.W.6/2) in respect of the dead body and despatched it under escort of F.C. Yunus (P.W.7) to the mortuary, Havelian, where, on the identification of Safdar (P.W.1), post-mortem examination was conducted by Dr. Jumma Khan (P.W.6) on 1-9-1985 at 6-30 a.m. The above-named S.H.O. Arrived at night in the crime village but due to darkness deferred investigation to morning time, when, on search of the house of accused, recovered an empty cartridge (Exh.P.9) vide recovery memo. Exh.P.W.9/2. He then inspected the spot, collected bloodstained earth Exh.P.1 with leaves of Mash crop Exh.P.2 and also recovered an empty cartridge Exh.P.3 and cut grass Exh.P.4 therefrom and packed them into a seal parcel vide recovery memo.
Exh.P.W.2/1 in the presence of marginal witnesses, including Dandan Khan (P.W.2), He also prepared the site plan Exh.P.B. With all footnotes, drawings and distances given therein. On the same day F.C.
Muhammad Razzaq brought from the mortuary shirt Exh.P.6, under-vest Exh.P.7, blood-stained, with pellet marks, belonging to the deceased and produced these articles before Inspector Malik Aman Khan (P.W.11), who took them into possession and made the same into a parcel vide recovery memo. Exh.P.W3/1. The Inspector searched for the accused but found him untraceable. In the meanwhile, a search-warrant under section 204, Cr.P.C. Was obtained by A.S.I. Muhammad Ayub (P.W.10) and the same was entrusted for execution to LHC Abdul Rashid (P.W.12), who searched for accused in his native village and surrounding areas but he was not available and was intentionally avoiding his arrest. In consequence, the said Inspector initiated proceedings under sections 87 and 88, Cr.P.C. Against the accused but to no effect. Subsequently blood-stained earth and leaves and clothes of the deceased were sent for examination to the Chemical Examiner, who found these articles stained with human blood and of the same group vide report Exh.P.Q. However, accused was arrested on 26-3-1986 and on 28-3-1986, while in custody, he led the above Inspector to a shotgun Exh.P.5 from bushes nearby and the same was taken into possession and sealed in a parcel vide recovery memo. Exh.P.W.5/1 in the presence of A.S.I. Muhammad Akram (P.W.5). It appears that the crime empty and this shotgun recovered almost more than six months after the occurrence were not sent to Arms Expert. After the usual police investigation and its completion, a charge-sheet under section 302, P.P.C. Was submitted against the appellant to the Ilaqa Magistrate who sent the same to Court of Sessions Judge, Abbottabad, where after trial he was convicted and sentenced, as already stated.
4. At the trial, the appellant pleaded not guilty to the charge and professed innocence, and when examined under section 342, Cr.P.C. He denied all incriminating circumstances. He raised the plea of false implication on account of enmity. As regards the allegation of his abscondence, he asserted that he did not abscond, that the proceedings initiated against him in respect thereof are fictitious and as a matter of fact, he was in Quetta in connection with his livelihood and the moment he knew about the charge, he came to Abbottabad and surrendered to Court of Sessions Judge by applying for pre-arrest bail. He did not call any evidence in defence and except pressing his bare denial, he did not either set up any special plea or claim any exception to section 300, P.P.C.
5. The first question that presents itself for decision is whether in respect of the death of Dilawar deceased an offence of wilful murder has or has not taken place. In this context, reference may be made to the testimony of Dr. Jumma Khan (P.W.6). While giving his evidence, he has stated that on 1-9-1985 at 6-30 a.m., he performed the autopsy on the dead body of Dilawar deceased and, on visual examination he noticed the following injuries:-- ' External Examination:
(1) Multiple entrance of pellets each about 1/4 x 1/4 on the face on either side of the midline and similarly on the forehead over an area of 5" x 4".
(2) Multiple entrance of pellets over an area of 8" x 6" occupying the front of the chest and neck on either side of the midline.
(3) One entrance of pellets 1/4 x 1/4 on the front of the abdomen in midline just below the stomach.
(4) One entrance of pellets 1/4" x 1/4" on the front of the left upper arm, 4" below the shoulder joint.
(5) An oval ring shape abrasion 1/4" x 1/4" over the front of the chest in midline at the level of the two nipples. One pellet was recovered from the level of injury No,1 and three from the chest level.
On dissection, he found scalp, chest wall, abdomen wall, mouth, pharynx, pleaural, lyranx, trachea, both lungs, heart and blood vessles injured at the level of injuries. Stomach was healthy and so were small and large intestines. According to him, injuries 1 to 4 were caused by fire-arm and injury No,5 by blunt means, that injury No,1 was grievous while injuries 2 and 3 were dangerous to life and sufficient in the ordinary course of nature to cause death and injuries 4 and 5 were simple in nature. The probable time, that he elapsed between injuries and death was about 3 to 5 minutes and between death and post-mortem 12 to 24 hours. Death, in his opinion, was due to excessive bleedings and damage to vital organs. From this deposition, it is clear enough that whosoever inflicted the above injuries on the deceased had the intention to cause death or intended to cause such bodily injuries as were sufficient in the ordinary course of nature to cause death. We feel free to hold that an offence of wilful murder has taken place in respect of the death of the deceased.
6. The crucial question that poses itself for determination is whether the appellant is responsible for intentionally causing the death of the deceased at the time and place and in the manner as alleged by the prosecution. Before we start to discuss the evidence, both ocular and circumstantial bearing on the guilt of the appellant or otherwise, we come across an important fact at the very outset that the scene of tragedy is laid in a piece of land known as `Thandi Kassi' within the limits of village Dheri Kehal, distant 17/18 kilometres from Police Station Havelian and that the time of occurrence is stated to be Degarwela. According to the doctor, who conducted autopsy on 1-9- 1985 at 6-30 a.m. The deceased met his death about twelve hours before his post-mortem examination, if a likewise period representing margin of error as suggested by him, is excluded.
Thus, the minimum time put on the death of the deceased by the doctor tallies with the time of occurrence as alleged by the complainant. Similarly, the blood-stained earth and leaves collected from spot and clothes of the deceased worn by him at the material time were examined by the Chemical Examiner and were found to be smeared with human blood and of the same group. The recovery of human blood as deposed to by S.I. Zafar Khan (P.W.9) for spot, fixes the same place as venue of the crime beyond any range of doubt. If the time of homicidal attack and the place of occurrence is borne in mind, then the claim of the complainant to the effect that he, while carrying the dead body firstly on cot from spot to Rajoya village and then from there, in a jeep, turned up at Police Station Havelian at 9 p.m. On fateful day for report becomes acceptable. S.I. Zaffar Khan (P.W.9) has deposed at the trial that he scribed the report of Ali Akbar (P.W.3), to his dictation at 9 p.m. And his assertion in this regard has not been questioned at all by the defence. Having regard to the arrangement for cot and carriage of deceased from place to place and distance covered en route police station by the complainant, it may well be taken that the report was made and recorded without any loss of time. This prompt and genuine document serves to corroborate the statement of its maker as regards the time and venue of occurrence, nomination of author of crime, weapon used by him, names of eye-witnesses with cause and purpose for their presence and conduct of the culprit at the relevant time. Thus, FIR., which stands unshaken, furnishes a sold foundation for the case set up by the prosecution.
7. This brings us to the consideration of ocular account. It is furnished by the testimony of Kala Khan (P.W.8) who professes to be an eye-witness of the occurrence. The presence of this witness at the time and place of occurrence is testified by Ali Akbar (P.W.3). That latter has stated that on the fateful day he alongwith his father Painda Khan was cutting grass in their field, while the deceased together with Kala Khan (P.W.8) and another Kala was watering. Mash crops owned by them at some distance. In the meanwhile, at about Degar times, a shot rang out, followed by shout of Kala (P.W.8), informing Ali Akbar (P.W.3) that appellant had killed the deceased and on reaching the spot, Ali Akbar (P.W.3) found his deceased brother lying dead and also noticed the appellant armed with shotgun, decamping therefrom towards his village Bokhera. All Akbar (P.W.3) then arranged for cot, placed the deceased thereon and carried him to village Rajoya from where, he was taken in a jeep to Police Station Havelian where, on his arrival, a report was made. The witness in hand has not been properly cross-examined in respect of these assertions and his testimony to the above effect thus, goes unchallenged. Apart from this, the prompt report made by Ali Akbar (P.W.3) not only establishes his own presence but also that of Kala (P.W.8) and nother Kala at the spot close to the place where deceased was done to death. The above testimony is more or less supported by Kala (P.W.8) who has stated that while he was present and grazing cattle in his field, and the deceased was busy in cutting grass, he heard a report of shot and saw that appellant had killed the deceased and after reloading his gun, had aimed at him and Kala son of Said Khan, who ran for his life, and that he raised alarm attracting Painda Khan and thereafter appellant decamped towards his house. In cross-examination, regarding some suggestions and questions put to him, he stated in reply that the deceased was cutting grass from his field while he himself was present cutting grass at a distance of 15/16 paces from him, that deceased was facing the appellant prior to firing, that it is incorrect that the deceased was not cutting grass at the natural time and that the dead body of the deceased was taken to police station by Ali Akbar and his other relations and he himself did not accompany them. The suggestions made in and trend of cross- examination by the defence further tend to confirm the presence of All Akbar (P.W.3) and Kala (P.W.8) and that of the appellant and deceased at and near about the scene of offence as also the fact that these witnesses in a broad daylight were in a fit position to identify the assailant and the victim at the material time. The medical testimony also corroborates the description of prosecution version as offered by Kala (P.W.8) both in evidence-in-chief and cross-examination. A cumulative effect of the desposition of both the witnesses in hand leaves us in no region of doubt that except the appellant none else had fired at the deceased by shotgun with fatal results at the time and place and in the manner as alleged by the prosecution. The abscondence of the appellant as established by evidence of A.S.I. Ayub (P.W.10), Inspector Malik Aman (P.W.11) and LHC Abdul Rashid (P.W.12), whom we have no apparent reasons to disbelieve, further reinforces this inference.
8. Notwithstanding the above, the learned counsel for appellant has drawn our attention to two- fold facts, firstly that appellant had no motive to do away with the deceased and motive set up by prosecution is farfetched and not established by any credit worthy evidence and secondly that independent persons like Gul Khan and his sons were present at the spot and so was Kala son of Said Khan mentioned in F.I.R. And their non-production casts thick cloud on the truthfulness of the case set up by the prosecution. As regards motive, we may remark, it is in fact thinking propensity of an individual and resides in the mind of the person doing the act and which no human being but the party himself can divine. Even a devil cannot pry deep into the mind of an offender and know its inner working and judge the springs of his conduct. Thus, failure to discover the motive for an offence does not signify its non-existence, and inability to produce evidence of motive is by no means fatal. However, inadequacy of motive goes to back-water in face of clear, cogent and convincing ocular evidence, as in the present case. And at best motive is relevant and important on the question of sentence and benefit of obscurity of motive, if any, in our view, has already been extended to the appellant. The first contention thus stands answered. However, as regards the second link of the argument, we may at once say that it is not legally necessary to call every witness mentioned in F.I.R. Both Kalas are closely related inter se and also with the deceased and the prosecution has thought it advisable not to encumber the record with evidence of too many relations. Similarly Gul Khan and his sons, according to Kala (P.W.8), arrived at the scene after the firing. Hence they are not material witnesses. It is scarcely necessary for us to state that it is an easy experience of the superior Courts that persons unconnected with occurrence are invariably hesitant and averse to render any assistance to the victims of offence or aggression or come forward to offer evidence as witness. Instead they choose to keep away rather than to embroil themselves and incur the animosity of one of the parties. Faced with such a situation, non- examination of disinterested persons will not per se furnish a valid ground to overthrow prosecution case, which has otherwise been established by the other reliable evidence. The defence could very well produce such witnesses to offset the effect of evidence of witnesses examined by the prosecution in support of its case. It must be remembered that although Ali Akbar (P.W.3) and Kala Khan (P.W.8) are closely related inter se and with the deceased but they have no previous hostility or enmity with the appellant. In the absence of any malice or motive to falsely implicate the appellant, the mere relationship cannot be held a ground to discredit a witness if otherwise his deposition is found confidence inspiring particularly when inimical attitude towards the offender is found missing, as in the case here. Being a case of single culprit and the occurrence having taken place in broad daylight it is difficult to hold that the related witnesses in the instant case would screen the real offender and substitute the appellant instead. The second contention is thus equally devoid of substance and is repelled. Likewise much belated recovery of gun, if not sent to Arms Expert does not rob evidentiary value of testimony of Kala (P.W.8), who has given version in forth right manner.
9. Resultantly, the case against the appellant stands fully established and since genesis of attack is shrouded in mystry, he has been rightly sentenced to life imprisonment. Amount of compensation is equally warranted by the circumstances of the case. In this view of the matter, we dismiss both the appeal and the revision petition. S.A./954/P Appeal and .