1. HAMID SAEED MALIK , J.---Our this judgment will dispose of the present criminal appeal and revision petition which arise out of the same incident.
2. Appellants (i) Mukhtiar son of Sher Dad, (ii) Sahib Taj s/o Hazrat Gul and (iii) Shah Jehan son of Abdul Hakim were tried for the murder of Pahlwan son of Abdul Ghafoor by the Additional Sessions Judge, Mardan, convicted them under section 302/34, P.P.C. and sentenced them (all the three) to imprisonment for life with a fine of Rs,10,000 each. In default of payment of fine they shall suffer six months R.I. each. The fine, if recovered, be paid to the legal heirs of the deceased as per section 544-A, Cr.P.C.
3. The prosecution case as disclosed in the statement of Mst. Shero, widow of Pahlwan deceased (P.W.10) and also the lodger of F.I.R. is that on 17-3-1992 at about 17.30 hours, she alongwith her deceased husband, brother Jan Ali (P.W.11) and son-in-law Fiaz Ali (abandoned witness) went to Chargali to make some purchases and on return when they reached near the shop of Abdul Hakim-Jehanzeb Khan, the accused-appellants abovementioned emerged duly armed and started firing at her husband who was going ahead of them. As a result he was hit and died on the spot. Appellants thereafter, decamped from the spot. Occurrence was stated to be witnessed by the complainant, her brother and son-in-law aforementioned. Motive of occurrence was alleged to be that 14/15 years back brother-in-law of accused appellant Sahib Taj was murdered and the deceased was suspected of spying. She fully corroborated the report lodged by her. P.W.11 Jan Ali was also examined as an eye-witness to the occurrence. According to him on the day of occurrence, he alongwith deceased, her sister Mst. Shero (P.W.10) and Fiaz Ali (abandoned witness) were proceeding from Adda Chargali to their house and when reached near the shop of Abdul Hakim, accused appellants duly armed appeared and started firing at deceased. As a result he was hit and died on the spot. Accused-appellants then decamped from the spot.
4. Dr. Liaqat Ali Afridi, Medical Officer, D.H.Q Hospital, Mardan (P.W.9) performed the post-mortem Examination on the dead body of the deceased and found the following:- External Examination: He was an old man of 60/65 years. Post-mortem staining and rigourousmortis were in process.
5. (1)Fire arm crush injury right fore arm, all the structures are crushed.
6. (2)Fire arm entrance wound 3" x 2" in front of the left ankle joint. Exit of the same size 4" x 2" on the same foot.
7. (3)Fire arm entrance wound left leg in front 3" x 2" exit of the same on the back of left leg which is 4" x 2".
8. (4)Fire arm crush injury on the left thigh 6" x 4" in front. Exit of the same 7" x 4" on the back of the skull.
9. (5)Fire arm entrance wound 5" x 2" on the medial aspect of left thigh.
10. (6)Fire arm entrance wound right thigh in front of knee joint 5" x 2". Exit of the same on the back 6" x 2".
11. (7)Fire arm entrance wound right thigh 3" x 2" laterally situated. Exit of the same medially on the right thigh 4" x 3".
(8) Two fire arm entrance wounds on the lower abdomen 4" x 2".
(9) Fire arm exit wound on the back of left side chest.
(10) Fire arm entrance wound on the left side chest 2" x 2".
(11) Fire arm grazing wound right side chest.
(12) Fire arm entrance wound on the left side of skull 1/4" x 1/2".
(13) Fire arm exit wound top of the skull 1" x 1/2".
(14) Fire arm exit wound back of right side.
(15) Two fire arm entrance wounds on the right buttock 1/4" x 1/4".
(16) Two fire-arm entrance wounds left buttock.
12. Internal Examination The skull was found fractured. The brain injured. Wall of thorax, pleurae, right and left lungs and blood vessels were found injured.
13. Abdomen:- Walls, peritonium, small and large guts were found injured. The stomach was healthy and empty."
14. At the trial prosecution examined as many as fourteen witnesses out of whom the aforementioned P.W.10 Mst. Shero (complainant) and P.W.11 Jan Ali are the two alleged eye-witnesses of the occurrence. P.W.9 above said is Dr. Liaqat Ali while rest of the witnesses are formal and police officials.
15. At the close of the prosecution evidence the appellants were examined under section 342, Cr.P.C.
16. They took the plea of bare denial but produced no defence nor wished to be examined as their own witnesses.
17. M/s. Khawaja Muhammad Khan, counsel for the appellants, Saeed Baig, advocate, for the complainant, and Muhammad Riaz, Assistant Advocate-General for the State argued the case for their respective parties. Prosecution evidence was perused with their valuable assistance.
18. The learned counsel for the appellant took us through the statements of P.W.9 (Doctor Liaqat Ali), P.W.10 Mst. Shero (complainant/eye-witness), P.W.11 Jan Ali (eye-witness) and P.W.12 Liaqat Ali Khan, A.S.1. (Investigating Officer). The learned counsel for the appellant submitted that the ocular evidence is contradictory and inconsistent in material particulars, therefore, ought to be discarded.
19. In so far as "motive" is concerned, it is contended that no evidence was produced at the trial in support of the motive. It is further urged by the counsel that the motive alleged in the present case relates to as back as 14/15 years ago and only concerned with accused-appellant Sahib Taj. It is contended by the learned counsel that so far other two appellants Mukhtiar and Shah Jehan are concerned, the motive so alleged having no concern with them and there was no reason with them to have taken part in the commission of the offence, when otherwise they are not even in close relation with the co-appellant Sahib Taj. The learned counsel further assailed the order of the Court below on the following grounds. Firstly, that Mst. Shero (P.W.10) and Jan Ali (P.W.11) were closely related to the deceased, so their testimony without independent corroboration, could not be made a base for conviction. Secondly, no witness of the venue of occurrence was produced despite the fact that the occurrence had taken place at 'Deegar Vela' (5-30 p.m.) in populated area, where shops and houses are situated and people were present. Thirdly, presence of P.W.10 and P.W.11 on the spot is highly doubtful as no evidence available on record to support their presence on the spot. Fourthly, there is inordinate delay in lodging the F.I.R.
20. The learned counsel while agitating the said points, argued that eyewitness Mst. Shero (P.W.10) is the widow of the deceased while Jan Ali (P.W.11) is the brother-in-law of the deceased being closely related to deceased could not be relied upon. He further submitted that keeping in view the time of occurrence in the month of Ramazan (P.W.10) Mst. Shero being a household wife and Pardahnasheen lady supposed to be in her house, preparing 'Iftar' for her husband and brother and her presence on the spot at such time is highly doubtful. Similarly, P.W.11 Jan Ali's presence on the spot has not been proved from any circumstantial evidence. It is contended that the said two witnesses have stated that they have purchased household articles from the bazar which were in their possession at the time of occurrence but no such articles were found on the spot or taken into possession by the Investigating Officer. It was the view of the learned counsel that the occurrence for the said reason was an unseen and the said two alleged eye-witnesses are incredible and have neither seen the occurrence nor they were present on the spot. In support of his second and third contentions, the learned counsel submitted that place of occurrence is encircled by the houses and Abadi of village Jehanzeb Khan Banda and occurrence has taken place in day light but even then none from the public has been cited as witness nor any one was examined in this behalf. The learned counsel further submitted that there is no ocular or circumstantial evidence available on record to establish that P.W.10 and P.W.11 were present on the spot. He next argued that there is inordinate delay in reporting the incident to the police while police post Chargali is situated at a distance of three furlongs as per statement of P.W.12 Liaqat Ali (Investigating Officer) from the place of occurrence. The learned counsel stressed that deceased could have been removed to Police Post within half an hour at the most after the occurrence and consumption of 1-1/2 hours in reporting the matter to police highly reflects suspicions on the prosecution case. The learned counsel in the end pointed out some contradictions in the statements of the said two eye- witnesses and stressed that their evidence is not worth reliance.
21. On the other hand, Mr. Saeed Baig, Advocate for the complainant and Mr. Riaz Ahmad Khan, A.A.-G. for the State supported the sentence and conviction on the grounds (i) that the accused- appellants are charged in the F.I.R. (ii) mere relationship of P.Ws. 10 and 11 could not be a cause to disbelieve the prosecution story (iii) no question of substitution of accused-appellants in absence of any blood feud enmity (iv) medical evidence is completely in line with the prosecution case (v) all the three appellants remained absconders and arrested in a raid duly armed; and lastly (vi) contradictions, if any, are minor and ignorable because these were not sufficient to shatter the prosecution story.
22. We have heard the learned counsel for the appellants as well as the counsel for complainant and State at length.
23. Contention of the learned counsel for the appellants regarding motive that it being a farfetched and a closed chapter as it relates to an incident which has occurred 14/15 years back does not at all appeal to mind as in this area of the country people never forget their enemies due to passage of time and use to keep alive the enmity in their minds and never spare their enemies the moment they get the chance. Further, the defence has not cross-examined the witness about motive and, thus, evidene in this regard had gone unchallenged. The said motive, no doubt, is alleged against the accused-appellant Sahib Taj and the very charge against the other two accused-appellants speaks of truthfulness of witnesses because if they would not have participated in the commission of the offence, there would have been no reasons with the complainant to charge them.
24. Admittedly, the two eye-witnesses Mst. Shero (P.W.10) and Jan Ali (P. W.11) are closely related to the deceased but it is on record that there did not exist any deep rooted enmity between the deceased party and appellants. The said two eye-witnesses had fully supported the prosecution case despite of lengthy cross-examination. P.W.10 and P.W.11 were the most natural witnesses in the circumstances of the case, who were accompanying the deceased at the time of occurrence. The ocular evidence is fully supported by the Medical evidence. The evidence of the said two P.Ws. is confidence inspiring and could not be brushed aside on the only ground that they were related to the deceased. We are also not persuaded with the next contention of the learned counsel for the appellants that as the occurrence has taken place in a populated place, therefore, non-production of independent and disinterested witnesses casts doubts on the credibility of the aforementioned eye-witnesses. It is a matter of common observation that person generally hesitate to become a witness in a murder case to avoid enmity of others, and, therefore, no one has dare to come forward to make statement against the appellants. So far as the question of delay in lodging the report, as argued by the learned counsel, is concerned, the same having no force at all. There is no material background of enmity between the parties and the prosecution has gained nothing by this delay and further such a delay of 1-1/2 hours is negligible in view of the time of occurrence i,e, very close to 'Iftar' certainly sometime do consume in arranging of cot, conveyance etc for taking a dead body to police station and the delay objected in the present case is not such, which could adversely affect the prosecution case. There are about fourteen inlet injuries on the person of the deceased, which are apparently in conformity with the number of appellants and as such the prosecution case is fully backed by the medical evidence. The prosecution case cannot be doubted on the ground of existence of some minor discrepancies or contradictions in the statements of prosecution witnesses. It is now settled that minor discrepancies and contradictions are not fatal to the prosecution case. The witnesses normally appeared before the trial Court after the laps of sufficient time of occurrence and not supposed to furnish photostat narration, and, therefore, this contention of the learned counsel too having no force.
25. Besides, the ocular and circumstantial evidence, there is the evidence of abscondence. The accused-appellants absconded just after the occurrence. Warrants under section 204, Cr.P.C. were issued against the appellants and they were searched in their village and surrounding villages but they were not available and warrants issued against them returned unserved. No doubt, their abscondence alone is not a conclusive evidence of their guilt, yet could be taken as corroborative piece of evidence against them.
26. In the light of the foregoing reasons, we find ourselves unable to interfere with the order/judgment of the learned trial Court as we are of the view that there is no material on the record to disbelieve the prosecution case. We, however, find ourselves in agreement with the reasons of the learned trial Judge, for awarding the lesser penalty of life imprisonment.
27. As such the appeal and criminal revision both are dismissed.