' CH. MUHAMMAD ARIF, J.---Leave to appeal is sought by the convict/petitioner-Hafeez-ur-Rehman against the judgment of a learned Single Judge dated 15-1-1997, whereby his Criminal Appeal No,44 of 1994 was dismissed maintaining the conviction recorded by the learned Sessions Judge, Rawalpindi vide judgment dated 28-2-1994 for offence of ' Qatal-e-Amd' punishable under section 302(b), P.P.C. And sentencing him to life imprisonment as 'Taazir' and payment of Rs,50,000 under section 544-A, Cr.P.C. As compensation to heirs of the deceased-Muhammad Idrees and to undergo simple imprisonment for six months in default of payment. The petitioner was also given the benefit of section 382-B, Cr.P.C. For a period of one year, 5 months and 15 days for which he remained in custody.
2. The case of the prosecution, as culled out from F.I.R. No,201 dated 12-9-1992, registered at Police Station Mandra, District Rawalpindi, was that on 12-9-1992, the deceased-Muhammad Idrees left his house situated in Bangali Gujar for going to Rawalpindi to earn his livelihood. The petitioner- convict had a quarrel with the deceased, who fell down as a result of grappling. The deceased came back to his house to change his clothes which were besmeared with mud. The deceased again left for Rawalapindi accompanied by his father, complainant-Lal Hussain (P.W.5). The petitioner, while armed with a Chhurri raised Lalkara and gave a chhurri-blow on front side of chest of deceased-Idrees, who fell to the ground and died at the spot within 5/10 minutes at the Bus Stand in front of shops of Fazal Hussain. The occurrence was witnessed by Ali Qadar (given up P.W.) and Muhammad Khan (P.W.6) also.
3. Petitioner was arrested in the case on 13-9-1992 and was tried by the learned Sessions Judge, Rawalpindi where he had answered the charge on 12-6-1993 by stating that: "I have heard the charge I had caused injury with Chhurri but I had no intention to kill". He did not plead guilty to the charge of Qatal-e-Amd' and was, accordingly, tried. Prosecution produced 9 witnesses in all including P.W.1 Dr. Tariq Mahmood, Medical Officer, who had conducted the post-mortem examination on dead body of Muhammad Idrees on 12-9-1992 P.Ws. 5 and 6 being, respectively, the father of deceased-Muhammad Idrees and the husband of first informant's sister's daughter, were also examined in support of the prosecution case. Ali Qadar P.W. Was given up. The site plans Exhs. PB and PB/1 were brought on record through PW-2/ Muhammad Din who had prepared the same. ASI-Abdur Rehman was examined as P.W.-7 in support of the recovery of Chhurri Exh.P.1 at the instance of the petitioner vide Memo. Exh.PD. The Investigating Officer/Inspector-Nadir Ali was examined as P.W.9, having recorded the F.I.R. Exh.PC as also having proceeded to the place of occurrence and prepared Inquest Report Exh.PE and Injury Statement Exh.PF. He also took into possession the last worn clothes of the deceased, vide Exh.PG. This P.W. Also prepared the site plans, arrested the accused on 13-9-1992 and effected the recovery of Chhurri P.1 vide recovery memo. Exh.PD. The reports of the Chemical Examiner and that of the Serologist were also tendered in evidence as Exhs. PH and PI, respectively.
4. In his statement under section 342, Cr.P.C. The petitioner denied the allegations against him and stated that the dead body of the deceased was found in a ditch and information to that effect was got by the complainant who involved him in the case on account of the breaking of the engagement of petitioner's sister, Mst. Rukhsana, with Muhammad Idrees-deceased. His statement under section 340 (2), Cr.P.C. Was recorded without oath.
5. The learned trial Court convicted and sentenced the petitioner as above, after thoroughly examining the evidence on record. Except for believing motive, the case of the prosecution against the petitioner was held to have been proved on the basis of the eye-witness account which, in its own turn, was supported by medical evidence as well as evidence regarding recovery of Chhurri P.1 at the pointation of the petitioner. As regards motive, it was held that the ocular evidence was not sufficient to hold that the same was tantamount to supporting the prosecution case.
6. The learned Judge in Chamber meticulously scanned the evidence and came to the conclusion that the trial Court judgment dated 28-2-1997 does not suffer from any factual and legal error. The recovery was held to have been proved by P.Ws.7 and 9 and it was held not to be a case of conducting a search of any place by the Police but as one in which the petitioner had himself led the Police to the place of recovery and eventually got the recovery made. The FIR having been lodged promptly i.e, within one hour of the occurrence at the Police Station, which is located at a distance of 12 miles, it was held that in addition thereto the use of the Chhurri by the petitioner clearly brought it to the fore that the medical evidence supports the prosecution case to the hilt.
The ocular testimony, of P.Ws.5 and 6, was held to be unimpeachable. Para.17 of the impugned judgment reads thus: "17. The statement of the accused in answer to the charge can also be made use of in this case where he although not pleaded guilty to the Qatal-e-Amd stated as having caused the injury with Churri with the intention of causing the injury. Such a statement of the appellant is also covered by the provisions of section 300, P.P.C. Although the appellant in his statement under section 342, Cr.P.C. Retracted from his earlier answer to the charge. But the fact remains that he made the statement to charge on 12-6-1993 after nine months of his arrest which cannot be considered to be under any pressure or in the State of involuntariness. The prosecution was able to prove the charge against the appellant beyond any reasonable doubt."
7. We have heard Mr. Mujeebur Rehman, learned counsel appearing in support of this petition. He has firstly contended that the conviction of the petitioner was not warranted inasmuch as eye- witnesses' presence on the spot was doubtful and that the conduct of the complainant was highly improbably. It was next contended that the only disinterested eye-witness namely Ali Qadar was not produced with the result that adverse inference should have been drawn against the prosecution. In the 3rd place it was argued that as motive in the case had not been believed, the same should have been thoroughly examined to unearth the mystery in which it remains shrouded so far. Lastly, it was contended that the evidence on the record has not been appreciated in accord with the principles deducible from the case-law on the subject.
8. We were also taken through the statement of P.W.5 with a view to finding out any alleged improvement made by him in the prosecution case as reported in F.I.R. Exh.P.C, while appearing as such before the trial Court. However, he was unable to point out any instance whatsoever of such improvements either in examination-in-chief or even in the cross-examination of the said P.W.
9. As regards the second plea regarding the failure on the part of the prosecution to produce Ali Qadar P.W., learned counsel relied upon the following excerpts from the case reported as Shah Nawaz v. Lal Khan and 2 others (1972 SCM R 286) to contend that adverse inference should have been drawn in this case as well: ' We have already noticed that Feroze Khan though named as an eyewitness, was not examined, and no explanation was given for his non-examination. Under section 114, illustration (g) of the Evidence Act, the Court may draw an inference adverse to the prosecution on account of the non- examination of the witness. We are unable to agree with Sh. Muhammad Shafi, learned Advocate appearing on behalf of appellant that it was entirely for the prosecution to determine who it is going to examine as a witness and, therefore, the non-examination of Feroze cannot lead to any adverse inference against the prosecution. In support of his contention he has relied on Allah Yar v.
The Crown (PLD 1952 FC 133). In the case under report there was reason to believe that the particular witness named in the calendar was not a truthful witness. He had said before the committing Court that he knew nothing about the occurrence and was in a different village when it took place.
' It was held that the prosecution exercised its discretion rightly in declining to call the witness in evidence. In this case reliance was placed on the decision of the Privy Council in the case of Malak Khan v. King-Emperor (LR 721 A. 305). The Privy Council made the following observations: ' 'It is not doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of Counsel for the prosecution and though a Court ought, and no doubt will take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witness.'
' These observations are in no way inconsistent with the provisions of section 114, illustration (g) of the Evidence Act. In the facts and circumstances of the case the Court could and should have drawn an inference adverse to the prosecution.
' No violation of any principle governing the assessment of the evidence before the Court has been alleged. Nor can it be contended that the findings of fact arrived at by the High Court are such as may be described as ' shocking to the judicial conscience'. The appellant has not succeeded in demonstrating with certainty that none of the grounds upon which the learned Judges of the High Court purported to acquit is at all supportable."
' A careful perusal of the report of the case of Shah Nawaz (supra) clearly brings it to the fore that the said precedent related to an appeal against acquittal and that facts thereof are distinguishable from that of this case. It is not the case of the petitioner that he had even so much as alleged that the eye-witness account had come from relative and inimical sources who had a reason to implicate him in this case. The precedent is of no help to the petitioner when considered in juxtaposition with.The eye-witness account which is duly supported by evidence of recovery as also the medical evidence, sources whereof are not tainted in law.
10. As regards the 3rd contention regarding the worth of motive-evidence in this case, suffice it to observe that absence of motive can hardly furnish a ground for complete exoneration of a single accused in a murder case. It was in this context that evidence of motive here was considered by the learned trial Court as also the learned Judge in Chamber while sentencing the petitioner to imprisonment for life and maintaining the same, respectively.
11. As regards the last plea that appreciation of evidence in this case falls short of principles deducible for the case-law on the subject, the learned counsel for the petitioner did not at all refer to any precedent in support of his such plea. Be that as it may, we have considered the plea from its various angles and do not find any illegality or infirmity in the treatment meted out to the prosecution and the defence by the learned Trial Court and the learned Judge in Chamber in their respective judgments dated 28-2-1994 and 19-1-1997. The eye-witness account as also the medical evidence, read in conjunction with the evidence of recovery of the Chhurri P.1 at the pointation of the petitioner, has been correctly " appreciated in the case at all levels.
12. Not finding any force in this petition, the same is dismissed and leave to appeal is refused.