' QAZI HAMIDUDDIN, J.--- Shahzada son of Faqir Shah aged 55/60 years resident of Dargai, Tehsil and District Nowshera, appellant herein, charged for the murder of Ajmir Shah, his co-villager, along with the absconding co-accused Gelada, Mir Akbar Shah and Tajbar Shah, was tried under section 302/34, P.P.C. By the learned Sessions Judge, Nowshera, who vide his judgment, dated 4-6- 1995 convicted and sentenced him under the aforesaid section of law to imprisonment for life and a fine of Rs,20,000 or in default to undergo one year's R.I. Half of the fine on realization was ordered to be paid to the heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. This criminal appeal challenges the conviction and sentence of the appellant.
2. Facts of the prosecution case as disclosed in the F.I.R. Lodged on 21-4-1993 at 7-10 a.m. By the complainant Alif Shah are that on 21-4-1993 at about 6-15 a.m. He along with his son Ajmir Shah (deceased) was proceeding towards their Arhat from their house. Ajmir Shah (deceased) was going ahead having a bull with him while the complainant was following him with a cow. When they reached near the house of the appellant Shahzada, all the four accused namely Shahzada son of Faqir Shah, Gelada son of Shahzada, Mir Akbar Shah son of Ghafoor Shah and Tajbar Shah son of Akbar Shah, his co-villagers, armed with fire-arms, emerged from the street of Shahzada and started firing at Ajmir Shah with intention to kill with which he was hit, fell down and died on the spot. After committing the offence the culprits decamped from the spot. The occurrence is stated to have been witnessed by Zafoor Shah and Zarbad Shah, P.Ws. Motive for the offence is stated to be previous enmity on account of disgrace of womenfolk.
3. The report (Exh.P.A.) was recorded by Zarif Khan, S.H.O. (P.W.5), it was read over to the complainant Alif Shah who after having admitted it correct thumb-impressed it. He prepared the injury sheet (Exh.P.D.) and inquest report (Exh.P.D./1) of the deceased and dispatched the dead body to the mortuary for post-mortem examination under the escort of Azim Dad, F.C. (P.W.6). He then proceeded to the spot and during the spot inspection he took into possession blood-stained earth vide memo. Exh.P.C./1 in the presence of marginal witnesses and prepared the site plan (Exh.P.B.) at the instance of the complainant and the eye-witnesses. He also took into possession blood-stained clothes of the deceased P.1 to P.3 brought by Azim Dad F.C. From the hospital and sealed the same into parcel vide memo. Exh.P.C. He sent the blood-stained \ earth and blood- stained clothes of the deceased to the Chemical Examiner vide memo. Exh.P.D./2, whose report is Exh.P.D./3. He made an application for obtaining warrant of arrest under section 204, Cr.P.C. Against all the accused and vide Exh.P.F./1 also made an application for obtaining proclamation against the appellant and the absconding accused. He recorded the statement of the P.Ws. And on completion of the investigation submitted complete challah against all the accused under section 512, Cr.P.C. The appellant was arrested on 5-81993 and a supplementary challah was submitted in Court by S.I. Fakhrullah Khan S.I. (P.W.4).
4. Dr. Tariq Khan (P.W.9) Medical Officer, District Headquarters Hospital, Nowhere performed autopsy on the dead body of Ajmir Shah on 21-4-1993 at 8-30 a.m. And found the following injuries on external examination:--
(1) Fire-arm entry wound 1/4" x 1/4" present on mastoid region of skull behind right ear.
(2) Fire-arm exit wound 2" x 1" present behind left ear with tearing of left pinna.
(3) Fire-arm entry wound 1/4" x 1/4" on left lateral chest at 7th intercostal space 2 c.m. Lateral to mid axillary line.
(4) Fire-arm exit wound 2" x 1" on right lumber region of abdomen.
(5) Fire-arm entry wound 1/4" x 1/4" on lateral surface of left thigh 4" below left hip.
(6) Fire-arm exit wound 1/2" x 1/2" on anterior surface of left thigh 4" below left hip.
' On dissection the doctor found the following:-- ' Scalp, skull membrane, brain injured. Thorax walls, ribs, pleurae, left lung injured. Abdomen, wall, peritoneum, diaghragm (Lt.), stomach, small and large intestine, right kidney injured.
' The doctor opined that the death of the deceased had occurred due to injuries to vital organs i,e, brain as a result of fire-arm.
' Probable time between injuries and death was stated to be instantaneous while time between death and post-mortem within three hours.
5. The prosecution examined as many as 10 witnesses in support of its case. Appellant Shahzada when examined' under section 342, Cr.P.C. Denied all the charges and pleaded innocence. He further stated that he had been falsely charged and the prosecution witnesses were interested and inimical towards him. As regards the ascendance he stated that he was in Azad Kashmir for labor purpose and on coming to the village he was arrested by the police. He did not opt to be examined on oath or to produce defense.
6. In this case the prosecution while relying on the testimony of the two eye-witnesses, Ali Shah (P.W.2) complainant father of deceased Ajmir Shah and Zarbadshah son of Mehboob Shah (P.W.3) cousin of the deceased, the enmity of the accused party with the complainant party, the recoveries from the spot and ascendance of the accused succeeded in obtaining conviction of the accused.
While in the present appeal the conviction has been assailed on the ground that the conviction is illegal as it is against material available on the record; that there was no recovery of any empty from the scene of occurrence though quite a large number of shots were fired; that the ocular evidence is not supported by any independent witness; that P.W.3 Zarbad Shah was employed at Margala, Islamabad and his presence at the scene of occurrence is not proved; there is no motive for the commission of the offence against the accused; that the injuries received by the deceased are of identical dimensions whereas the number of accused is four including the present appellant and all of them have been shown to have been armed with different types of weapons and it is also not known as with whose fire shot the deceased was injured and succumbed to the injuries; that the prosecution case suffers from many discrepancies and contradictions; that the ocular testimony is in conflict with the circumstantial evidence and that the provisions of section 34, P.P.C.
Are not attracted and that the petitioner being the elder member of the family has been falsely implicated in the present case.
7 Arguments heard and record perused. The perusal of statement of Alif Shah (P.W.2) and Zarbad Shah (P.W.3) reveals that their version identically substantiates the promptly lodged F.I.R. And nothing materially contradictory has been obtained from them in the cross-examination. On factual side of the narration, they have given similar version and their testimony has withstood the grueling test of cross-examination about the details of the occurrence as narrated in their statement. The eye-witnesses are supposed to -narrate what they have seen happening and are not required to explain the physical phenomenon accompanying the occurrence or solve the mysteries arising out of the incident. They are not supposed to explain as to why only the deceased sustained injuries while the complainant and other eye-witnesses who were also fired at escaped unhurt. Similarly they are not supposed to explain as to where the empties of the fire shots fired by the accused party have gone and why the same were not recovered from the scene of occurrence.
Similarly they are not required to prove as to why the walls of the street did not carry the bullet marks. The ocular evidence is to certify beyond any shadow of doubt, the role attributed to the appellant in the commission of the crime which in this case has been amply proved beyond doubts and the testimony of these witnesses with regard to their presence at the scene of occurrence, and the firing by the appellant and his accomplices at the complainant party and the deceased as a result of which the deceased' was fatally wounded has gone unquestioned. ,It is correct that the testimony of the ocular evidence can be contradicted by the accompanying circumstances of the crime like the absence of recovery of the empties from the scene of occurrence and other such facts but the fact as to whether the occurrence has taken or has not taken place and whether the appellant had participated in the commission of the crime can be safely ascertained to be correct in this case. The discrepancies referred to in the grounds of appeal can be ignored because the cross-examination of the two eye-witnesses has not dislodged the witnesses from their claim to be the eye-witnesses of the occurrence nor any doubt has been created otherwise than through these discrepancies to their presence at the spot. The absence of recovery from the scene of occurrence at the time of inspection of the spot could have been for the reason that the scene of occurrence was left unprotected and there is no evidence to the effect that a guard was installed by any one after the occurrence to protect the scene of the occurrence from the access of the people of the locality. As regards the objection of the appellant to the effect that all the four accused have allegedly fired at the complainant, eyewitnesses and the deceased, but only the deceased received the fatal injuries can be explained by the fact that in such like cases the witnesses do exaggerate their involvement in the occurrence and the fact that they escaped unhurt would not absolve the appellant of the charges which the witnesses leveled against him. Similarly the defense objection to the absence bullet marks on the walls of the street can be overruled for the reason that the bullets may not have struck the walls at all as the line of fire shots does not indicate that the bullet should have struck the wall.
'The next point in defense of the appellant's case is that the injuries on the person of the deceased are of identical dimensions but no effort has been made by the defense to prove that the weapons carried by the four accused could not cause the injuries of the dimensions borne by the deceased and also the possibility cannot be excluded that the fire shots of only one of the accused may have resulted in the death of the deceased. The two eye-witnesses have consistently charged the four accused including the appellant for the offence with a motive which has not been shattered and the subsequent conduct of the appellant of a his condense goes a long way to prove a case against the appellant. The learned counsel for the appellant has assailed the testimony of the two eyewitnesses for being interested as they are related to the deceased but has not been able to prove that their animosity towards the accused was of such nature to have led them to substitute the real offender. A witness would not lose his credibility for being related to the complainant or inimical to the accused. It would not be fair to altogether discredit the evidence or presuppose it to be false or fabricated merely 'for the reason that it is interested. It is essential to prove that the degree of the interest of the witness rendered him compulsive liar to maliciously implicate the accused, notwithstanding his own knowledge that the accused is innocent. In this case the witnesses are positive and consistent in their statement about the involvement of the appellant and that the degree of interest of the P.Ws. Is not proved to be of such a nature as to lead them to maliciously implicate the accused. Similarly whatever may be the number and dimensions of the injuries the fact that they in furtherance of their common intention perpetrated the crime goes a long way to establish a good case against the appellant and his conduct subsequent to the occurrence and that of his co-accused, who all preferred to abscond and only the appellant surrendered, may be as a test case to pave the way for future line to be adopted by them. The ascendance has gone unexplained and the appellant does not even prefer to explain it even through his own statement on oath or through other evidence in this regard.
'In the light of the above discussion this Court agrees with the learned Sessions Judge who has recorded the conviction and maintains his judgment. Appeal is accordingly dismissed.