ZIA MAHMOOD MIRZA, J.---This appeal by leave of the Court is directed against the judgment of Peshawar High Court dated 26-4-1993 whereby a learned Division Bench of the High Court dismissed the appellant's appeal, upheld his conviction under section 302, P.P.C. For causing the murder of Rehmatullah and confirmed his death sentence.
2. The appellant was put on trial on the charge of committing the murder of Rehmatullah deceased. Additional Sessions Judge, Lakki found him guilty of the charge and vide judgment dated 7-7-1992 convicted him under section 302, P.P.C. And awarded him death sentence together with a fine of Rs.30,000 or to years R.I. In default of payment of fine. Half of the fine, it' recovered, was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
3. The convict preferred an appeal against his conviction and sentence. A reference was also received in the High Court for confirmation of his death sentence. Learned Judge of the High Court as stated above, dismissed the appellant's appeal, maintained his conviction and confirmed his death sentence.
4. Case of the prosecution as set out in the impugned judgment of the High Court is that "On the eventful day at about ' Peshi Qaza Vela' complainant Abdul Majid alongwith his brothers Rehmatullah, Khalid and one Abdul Malik went to their land situate near Ziarat Bukhari Sharif in order to weed out shrubs. They worked in the field for sometime and then Rehmatullah deceased felt thirsty and went towards Ziarat Bukhari Sharif to quench his thirst where the appellant duly armed with shotgun was already present near the place where the Matkas' of drinking water were lying. As soon as the deceased went near the appellant he fired to shots at him one after the other as a result of which he fell down injured. The appellant then bolted away and when the complainant and his companions reached the spot they found that the deceased had succumbed to his injuries".
The motive for the occurrence set up by the prosecution was that the parties had a dispute in respect of landed property where the complainant party was working on the fateful day. The appellant claiming to be in possession of the disputed property had put on fire a room constructed thereon by the complainant as a result of which, a criminal case was registered against the appellant which was still pending. The appellant had also allegedly be laboured the complainant's brother Abdur Rashid and a case against him in respect thereof was also pending.
5. The appellant absconded after the occurrence. He was arrested on 8-10-1989 from the brick-kiln of one Mirza Ali Khan and a S.B. Shotgun and a bandolier containing 22 live cartridges were recovered from him.
6. To prove its case, prosecution examined nine witnesses including Dr. Ghulam Hussan- (P.W.3) who had conducted post-mortem examination of the deceased and Ghulam Yasin Khan A.S.I.
(P.W.7) who had investigated the case. Abdul Majid Khan complainant (P.W.1) and Abdul Malik (P.W.2) gave ocular account of the occurrence. Abdul Hamid F.C. Whose statement was recorded twice as P.W.10 deposed as to how he dealt with the executed the warrants against the accused/appellant under section 204, Cr.P.C. And the proclamation issued under section 87/88, Cr.P.C.
The appellant denied the charge levelled against him professed innocence and pleaded that he had been falsely implicated in the case. He, however, neither produced any evidence in his defence nor examined himself on oath under section 340(2), Cr.P.C.
7. Learned trial Court relying upon the ocular evidence in general and the statement of Abdul Majid (P.W.1) in particular, the factum of promptly lodged F.I.R., medical evidence, motive and absconsion of the appellant came to the conclusion that the prosecution had proved its case beyond any reasonable doubt. Appeal filed by the appellant in the High Court, as stated above, was dismissed and death sentence confirmed vide the impugned judgment. Learned Judges of the High Court having found that the occurrence took place at 5.p.m. And F.I.R. Was lodged by one of the eye- witnesses namely Abdul Majid (P.W.1) at Police Station, Lakki situate at a distance of three furlong at 5-30 p.m. And that the name of Abdul Malik (P.W.2) was mentioned therein as eye-witness proceeded to hold that "the promptitude with which the F.I.R. Was lodged not only suggests that the complainant had no the to fabricate a story and trump-up eye-witnesses but also goes a long way to prove the presence of the complainant as also the presence of Abdul Malik (P.W.2) on the spot at the the of occurrence. It thus cannot be said that the eye-witnesses are not natural witnesses. Both the eye-witnesses have given a uniform and straightforward account of the occurrence and their statements do not suffer from any infirmity despite the fact that both of them were subjected to lengthy cross-examination and for this very reason the learned counsel for the appellant could not point out any discrepancy or contradiction in their statements." It was also held by the learned Judges that the ocular evidence was amply corroborated by the promptly lodged F.I.R., abscondence of the appellant after the occurrence, medical evidence and the motive.
According to the learned Judges, mere fact that the Investigating Officer had not recovered any sickle from the spot was not sufficient to make the presence of the eye-witness on the spot doubtful. Learned Judges also took note of a suggestion made in the cross-examination to the effect that the complainant party wits the aggressor and observed that this suggestion was sufficient to prove the presence of the witnesses on the spot. It was found by the learned Judges that the abscondence of the appellant for a period of five years "stands squarely proved in the light of the statements of Ghulam Yasin Khan A.S.I. (P.W.7) and Abdul Hamid F.C. (P.W. 10), warrant under section 204, Cr.P.C. Exh.S.W.1/1 and the proclamation under section 87/88, Cr.P.C. Exh. S.W. 1/2 which are available on the record. The appellant has not furnished any explanation much less plausible in this context".
8. Leave to appeal was granted in this case to re-appraise the evidence in view of the following contentions raised on behalf of the appellant:--
(i) That besides the complainant Abdul Majid (P.W.3), his brother Khalid Usman and his cousin Abdul Malik were also mentioned as eye--witnesses but Abdul Malik was abandoned and only Khalid Usman was produced as (P.W.5) whose statement was not worthy of any credence under Article 3 of Qanun-e-Shahadat Order, 1984 for having perjured himself in some earlier criminal proceedings.
(ii) That there were certain discrepancies in the medical evidence and the eye-witnesses account.
(i.e) That the efforts were being made for compromise between the parties and there was every likelihood that the complainant party may forgive the petitioner as they were closely related.
9. We have heard the counsel for the appellant. He has stated that the efforts at compromise have not so far materialised. On merits, he has not controverted the factual findings recorded in the impugned judgment viz that the occurrence took place at 5 p.m. And the F.I.R. Was lodged at 5.30 p.m. And that Abdul Malik P.W.2 has since been acquitted of the charge of perjury nor has he denied the factum of the appellant's abscondence for a period of 5 years. He, however, assailed the appellant's conviction by contending that Abdul Malik (P.W.2) whom he described as P.W.4 was a chance witness and that the ocular testimony was belied by the medical evidence.
10. Before proceedings to examine the afore-noted contentions of the learned counsel for the appellant, we would like to point out some factual in--accuracies in the contentions raised at the the of grant of leave. It was wrongly contended that Abdul Malik one of the eye-witnesses was abandoned by the prosecution and only Khalid Usman was produced as P.W.5. Fact of the matter, however, is that Abdul Malik has appeared as P.W.2 and his testimony is available at pages 45-50 of the High Court paper book and it was Khalid Usman who was abandoned by the prosecution.
Similarly, the contention based on Article 3 of the Qanun-e-Shahadat Order, in fact referred to Abdul Malik P.W. And not to Khalid Usman. Be that as it may, having heard the learned counsel for the appellant and after going through the evidence, we find no merit in the afore--noted contentions of the learned counsel for the appellant. Abdul Malik P.W.2 had explained his presence on the spot by stating that he had purchased a plot adjacent to the plot of the complainant party for constructing a house. This explanation was not challenged in cross-examination. The learned Judges of High Court have, therefore, rightly held that he could not be treated as a chance witness.
Yet another circumstance which negatives the claim of the appellant is that the name of this witness as being an eye-witness of the occurrence was duly mentioned in the F.I.R. Lodged soon after the occurrence. Learned Judge of the High Court have rightly observed that the promptitude with which the F.I.R., was lodged goes a long way to prove the presence of the complainant and Abdul Malik P.W. On the spot at the the of occurrence.
We also find on perusal of evidence that there was no conflict between the ocular testimony and the medical evidence. The learned Judges of the High Court while dealing with this aspect of the matter have observed that. "The opinion of the doctor in regard to the the between injuries and death is mere approximation at! Is not supported by circumstances of the case." It has been pointed out by the learned Judges that the F. I. R. Was lodged within half an hour of the occurrence and at that the the dead body of the deceased was lying in the Police Station "as is evidence from a note in the F.I.R. To that effect." It has also been noted by the learned Judge that "the number of entrance wounds on the dead body of deceased disclosed by the medical evidence is undoubtedly commensurate with the number of shots mentioned by the eye-witnesses".
11. As discussed above, the ocular testimony furnished by Abdul Majid complainant and Abdul Malik P.Ws. Whose presence at the spot cannot be doubted is amply corroborated by the abscodence of the accused, the motive and the medical evidence. Learned Judges of the High Court, therefore, rightly held that the prosecution has established its case against the appellant beyond reasonable doubt. Impugned Judgment of the High Court does not suffer from any infirmity warranting interference by this Court. This appeal is accordingly dismissed.