' KHALIL-UR-REHMAN RAMDAY, J.--- Nazir Ahmad, his brother Ameer and their father Sher Muhammad had been accused, through F.I.R. No,125/83 of Police Station Pipplan of District Mianwali, of the murder of one Shamshad Ali Shah.
2. Ameer and Sher Muhammad accused were arrested while Nazir accused disappeared. After taking proceedings under section 512, Cr.P.C., he former two accused persons were tried but were acquitted; one by the trial Court and other by this Court through Criminal Appeal No,585 of 1988.
3. Nazir accused was finally arrested on 3-9-1988 and having been tried by the learned Sessions Judge of Mianwali, he was found guilty of the charge and upon his conviction under section 302, P.P.C., he was punished with death and a fine of Rs,10,000 or sufferance of two years? R.I. In default of payment of the said fine. Half of the amount of said fine had been directed to be paid to the heirs of Shamshad deceased, as compensation. The judgment was dated 6-8-1990.
4. Murder Reference No,146 of 1990 seeks confirmation of said sentence of death while Nazir convict has challenged the above-noticed conviction and sentences recorded against him, through Criminal Appeal No,579 of 1990. Both these matters are being disposed of together through this single judgment.
5. The occurrence in question had taken place at about 7-30 p.m. On 5-11-1983 near the house of Shamshad Ali deceased in the Mandi Town of Liaqat Abad about five furlongs away from Police Station Pipplan of District Mianwali. The said occurrence had been reported at the said police station at about 9-35 p.m. By Imtiaz Hussain Shah (since dead) who was a son of Shamshad deceased.
6. He had stated that he was residing in the Mandi Town of Liaqat Abad with his parents and that he was present in his house alongwith his brother Tajammal Hussain Shah (P.W.8) and his paternal-cousin, Iftekhar Hussain Shah (P.W.9) at about 7-30 p.m. On the day of occurrence when they suddenly heard the report of fire-arms. He had added that all three of them rushed out of their house and saw that his father Shamshad deceased was coming running towards their house and was being followed by Nazir appellant who was armed with .12 bore gun and by Ameer and Sher Muhammad accused who were armed with a pistol and a revolver respectively; they were raising Lalkaras and were firing shots. The complainant had claimed that in their view, Nazir appellant fired a shot which hit the deceased on the left of his back chest whereas Ameer accused fired a shot which landed on the right face of the deceased. He had informed the police that his father had died on the spot as a result of the said injuries received by him.
7. The complainant had further disclosed that his brother Munawar and others had murdered one Bashir Ahmad who was a son of Sher Muhammad accused and a brother of Nazir appellant, about three years prior to the occurrence and it was to avenge the said murder that the assailants had done the deceased to death.
8. The spot inspection had led only to the recovery of blood-stained earth which had been seized vide memo. Exh.P.E. Ghulam Ali S.I. (P.W.10) went again in search of the accused persons including Nazir appellant but they could not be found.
9. Muhammad Akram Inspector (P.W.14) obtained the warrants for the arrest of Nazir appellant on 20-11-1983 and handed them over to Ghulam Muhammad S.I. (P.W.11) for execution. The warrants for the arrest of Nazir Ahmad appellant is Exh.P.K. The said S.I. Went even to the native village of Nazir appellant in District Bannu but could not find him there. His report is Exh.P.K./1. Muhammad Akram Inspector sought a proclamation with respect to Nazir appellant through an application Exh.P.N. The said proclamation (Exh.P.L.) was accordingly issued and a the report of Ghulam Muhammad S.I. With respect to its publication is Exh.P.L./1.
10. Nazir appellant had been finally arrested on 30-8-1988 by Inayat Ali Shah S.I. Of District Bannu while the said appellant was present at Adda Takhti Khel and on realizing that he was a proclaimed offender, he was remanded to jail and on receipt of information about the appellant's arrest, Ghulam Qasim S.I. (P.W.12) went to Bannu on 3-9-1988 and took over the custody of the said appellant and brought him to Mianwali.
11. During the course of interrogation, the appellant led to the recovery of a .12 bore gun (P.6) alongwith seven live cartridges (P.7/1-7) on 6-9-1988.
12. When confronted with the prosecution case, the appellant pleaded that he had been falsely involved in the present case due to enmity. About his non-availability from the day of occurrence i,e. 5-11-1983 till his arrest on 30-8-1988, the appellant claimed that he had gone away and joined the Afghan Jihad in April, 1983 and had remained engaged in the same till June, 1988. He also produced Exhs.D.E., D.E./1 and D.E./2 which were certificates allegedly issued by Hezb-e-Islami, Afghanistan, with respect to the appellant's engagement in Afghan Jihan.
13. We are not impressed with the veracity of the appellant's claim of his having been involved in Afghan Jihad for five long years i,e. From April, 1983 till June, 1988. The three certificates above- mentioned which had been produced by the appellant during the course of his statement under section 342, Cr.P.C., were never proved on record in accordance with law. The authors of these certificates were never produced at the trial Court nor did any one else enter the witness-box to prove these documents. After his arrest and during the course of his interrogation, the appellant had never taken up the plea before the I.O. That he had remained involved in the Afghan Jihad. No such certificate or any other document or any relevant person had been produced before the I.O.
In support of the appellant's said plea. We, therefore, find that this explanation of the appellant's disappearance for five long years is not credible and we accordingly reject the same.
14. It is true that Tajammal Hussain (P.W.8) and Iftekhar Hussain (P.W.9) are the son and the nephew, respectively, of the deceased and thus closely related to him. But such a relationship has, by itself, never been considered a sufficient ground to discard the testimony of such like witnesses.
The occurrence in question had taken place right outside the house of the deceased at about 7-30 p.m. The son of the deceased who was a resident of the said house and who could reasonably be expected to be at home at that hour of the evening was thus a natural witness of the said occurrence. Iftekhar Shah P.W. Who was a son of a brother of the deceased used to be residing about 60/70 Karams away from the place of occurrence. His presence in the house of his paternal- uncle at the time of occurrence is thus also not an unbelievable claim. They had rushed out of the house after hearing the reports of fire-arms and it was thereafter that they had witnessed Shamshad Ali deceased being chased by the assailants and being shot to death. The time of occurrence was admittedly the time after sunset. The possibility of electric bulb being available near the place of occurrence, as claimed, cannot be ruled out. The light may not have been sufficient to search small articles at the place of occurrence but would be certainly enough to identify the assailants especially the appellant who was a resident of the neighbourhood and was more than intimately known to the eye-witnesses. The two eye-witnesses, as has been noticed above, were closely related to the deceased and the parties were even inimical towards each other but the above-noticed facts and circumstances demonstrate the type of intrinsic worth of the said testimony which makes these witnesses reliable.
15. However, the eye-witness account of the occurrence is being fully corroborated by the abscondence of Nazir appellant which extended over a period of five years. It was not denied that a brother of Nazir appellant had alleged been murdered by the sons of Shamshad deceased only about three years prior to the occurrence. The appellant thus even had a motive to commit the murder of which he stands accused.
16. We may also mention here that an eye-witness having been disbelieved in the trial against the co-accused of the present appellant, is no ground to disbelieve him vis-a-vis the present appellant. The judgment with respect to the acquittal of the co-accused of the present appellant is also document which is not relevant for the purposes of the present case. Reliance is placed on Muhammad Khurshid's case PLD 1963 SC 157.
17. Consequently, we find nothing on record which could persuade us to hold that the prosecution had failed to prove the appellant's guilt. No exception D can thus be taken to the finding of guilt recorded against him by the learned trial Court.
18. The confirmation of the sentence of death awarded to him by the learned trial Court has, however, engaged our attention. The sons of the deceased stood accused of the murder of a brother of Nazir appellant and nobody knows what had really transpired immediately before the occurrence when the appellant had started chasing the deceased and had started firing shots at him.
19. In this view of the matter, the sentence of death awarded to Nazir appellant is NOT CONFIRMED.
He is instead punished with imprisonment for life under section 302, P.P.C. He shall be allowed the benefit of the provisions of section 382-B, Cr.P.C. And it is further directed that the entire amount of fine imposed on the appellant shall be paid to the heirs of the deceased.
DEATH SENTENCE NOT CONFIRMED.
Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.