' Heqeequilah son of Muahammadullah, resident of Tangi Nusratzai, District Charsadda, was charged under section 302, P.P.C. In case F.I.R. No,1 I , dated 8-1-1989 of Police Station Tangi for committing the murder of Suleman deceased.
2. He was found guilty for the offence and was convicted by the learned Additional Sessions Judge, Charsadda vide order, dated 14-3-1995 and was sentenced to life imprisonment with a fine of R.s.50,000 which if realised shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof he is to undergo two years' S.I. The benefit of section 382-B, Cr.P.C.
Was, however, extended to the appellant.
' The capital punishment of death was not awarded by the trial Court as at the time of occurrence the accused-appellant was about 16 years of age and there was no blood feud enmity between the parties.
3. The convict has challenged his conviction and sentence through this appeal (Cr.A.No, 81 of 1995) and we have also before us Cr.R.No, 46 of 1995 brought by the complainant for the enhancement of the sentence and for converting it to the penalty of death, therefore, we propose to dispose of both the matters by this single judgment.
4. Facts of the case briefly stated are that Haji Fazli Rehman (P.W.6), the grandfather of Suleman deceased, after offering "Isha Prayers" in the mosque on 8-1-1989 at about 19-30 hours, returned to his house, and found the deceased Suleman along with Sardar Ali, Shaukat, Mujeeb and Muhammad Arif P.Ws. Standing outside the 'Devri' of their house. The complainant asked all of them to go to their houses as it was cold night.
' The complainant then went inside the house and started reciting the Holy Qur'an, when in the meantime, he heard the report of a fire shot from outside. He came out and saw Sardar Ali, Shaukat, Mujeeb and Muhammad Arif lifting Suleman deceased. On enquiry Muhammad Arif (P.W.8) informed the complainant that they were sitting outside the house and were busy talking to each other when Haqeequllah son of Muhammadullah appeared with a fire-arm and he fired a shot at the deceased and killed him and that he had identified the accused in the light of the bulb.
The complainant alleged that the motive for the offence was that one year prior to the occurrence the deceased and one Muhammad Ilyas had altercated with each other but the matter had been patched up by the elders of the locality, as such the accused Haqeequllah and the aforesaid Muhammad Ilyas were nourishing a grudge against the deceased. The prosecution has placed on the file the report recorded at Serial No,42, dated 18-1-1988 of Police Station Tangi in connection with the compromise of Muhammad Ilyas along with Suleman deceased and also another report recorded at Serial No,38 of the Roznamcha dated 18-1-1988 copy Exh.P.A/1 narrates the dispute ensued between them on 18-1-1988. These two reports are at pages 13 and 15 respectively of the paper book.
' According to the complainant the occurrence was witnessed by Sardar, Shaukat, Mujeeb and Muhammad Arif. The report of the complainant was recorded by Shad Muhammad. Khan, A.S.-I.
(P.W.11) on 8-1-1989 at 20-00 hours which is Exh. P.A.
5. Dr. Abdul Qadeer Khan Tariq, conducted autopsy on the dead body of Suleman and found the following on external examination:--
(1) 1" x I" fire-arm entrance wound 1" medial to the inferior angle of right scapula.
(2) Five fire-arm exit wounds left side chest near left nipple at a distance of about 2" from each other.
' On internal examination walls, pleurae, right and left lungs, pericardium and heart, blood vessels in the thorax were found injured. Abdomen intact. Stomach contained undigested food, muscles, chest. Muscles injured. Death caused due to shock and haemorrhage caused by fire-arm injury to the vital organs. Death was instantaneous and time between death and post-mortem was within 13 to 14 hours.
6. The prosecution evidence consists of 12 witnesses out of which the material witnesses are Fazlur Rehman complainant (P.W.6) who is not the ocular witness to the occurrence but he reported the matter to the police having received information from Sardar Ali (P.W.7), Muhammad Arif (P.W.8), cousin and Sardar Ali (P.W.7) a friend of deceased. The latter was won over and was declared hostile by the prosecution at the trial as he made departure from the earlier stand. Yet he confirmed the occurrence by admitting to have seen the accused decamping from the scene of occurrence after the fire shot. Muhammad Arif (P.W.8) is the only ocular witness who supported the prosecution case in its totality and being a natural witness charged the accused. He is related to the deceased but has no enmity with the appellant. Muhammad Siraj Khan, Inspector (P.W.10) confirmed the arrest of the appellant by the local police of Police Station Shabqadar on 21-5-1993.
7. Shad Muhammad Khan, A.S (P.W.11) after recording the report, prepared the injury sheet Exh.P.M/2 and inquest report Exh.P.M/3 of the deceased and despatched the dead body under escort for post-mortem examination. He then proceeded to the spot and after inspecting the same prepared the site plan Exh. P.B. Correct with all its footnotes, drawing and sketches, at the instance of the ocular witnesses. He took the blood-stained earth from the spot and sealed it in a parcel vide memo. Exh.P.R. From point 'D' of the Devri of the house of the complainant he took into possession a bulb Exh.P.1 of 40 Watts and another bulb Exh.P.2 from the electric pole situated near the site of the occurrence. He recorded the statements of some of the P.Ws. On arrival of the S.H.O. On the spot he handed over the investigation to him and he himself associated with the I.O. Zarif Khan (P.W.12) in those days was the S.H.O. He partly investigated the case and took into possession the bloodstained clothes of the deceased consisting of Shalwar P.3, shirt P.4, Jacket Exh.P.5 bloodstained and having corresponding cuts with a sealed bottle, containing 4 pellets Exh.P.6 vide memo. Exh.P.R/2. He placed on the file the copy of the Daily Diary No,38 Exh.P.A/1 and the copy of the Daily Diary No,42 Exh.P.A/2 on the file in connection with the motive for the offence. Besides he obtained warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.0 against the accused. He sent the blood-stained earth and clothes of the deceased to the Chemical Examiner and thereafter submitted under section 512, Cr.P.0 against the absconding accused.
8. The accused-appellant was examined under section 342, Cr.P.C. He denied the accusation against him and professed innocence, yet he preferred to produce his cousin namely Mujibullah in defence as he has been named as an ocular witness in the F.I.R. But was never examined by the I.O.
Under section 161, Cr.P.C. At any stage, ever since the registration of the case till he was examined- on 21-12-1994 before the trial Court as D.W.1 after a lapse of about 5 years.
9. Assailing the prosecution case the learned. Counsel for the appellant vigorously urged that the occurrence had taken place in darkness of the night and that 'none of the eye-witnesses were present to witness the same. The trial Court had based the conviction of the appellant on the evidence of the solitary witness Muhammad Arif (P.W.8) who was related to the deceased and was interested witness, besides his evidence was contradicted by the medical evidence. He further contended that out of the 4 ocular witnesses mentioned in the F.I.R. Only Muhammad Arif was examined whose testimony was not credible.
10. We have also heard the learned counsel for the complainant, the State Counsel and have examined the record. It is a case in which single accused has been charged for a single shot, and in the absence of blood feud substitution is a rare phenomena. The complainant Fazli Rehman (P.W 6) who is grandfather of the deceased and Muhammad Arif who is the cousin of the deceased, at the trial, brought a consistent charge against the appellant, therefore, the trial Court had based the conviction of the appellant on the solitary statement of Muhammad Arif (P.W.8) -which was materially corroborated by the statement of Sardar Ali (P.W.7) and also by the statement of the defence witness Mujibullah, who also admitted the fact that on the night of occurrence, he was present with the deceased and other companions when the light went off and somebody fired in the darkness killing the deceased but he could not identify the assailant. Besides, the abscondence of the accused for 5 years, the medical evidence and the motive for the offence also are in conformity with the charge brought by the complainant namely, Fazli Rehman who is an independent witness to the occurrence and he was honest enough not to have planted himself as an ocular witness. The trial Judge was not impressed by the defence plea in connection with the abscondence of the appellant as the accused had stated before him that he was studying in Yakka Ghund Mohmand Agency and was unaware of the incident. Strangely enough Muhibullah (D.W.1) being a cousin of the appellant did not inform him about the charge of murder at Yakka Ghund which is not far away from their native village.
12. Having considered all aspects of the case, we are of the view that Muhammad Arif (P.W.8) being a cousin of the deceased is the solitary witness to the occurrence but he has no motive to falsely involve the accused for the offence. His evidence, therefore, inspires confidence. There is plethora of case-law on the subject that relationship per se is no ground to disbelieve the evidence of the eyewitness, unless and until it is shown that he has a strong motive to implicate the accused.
Reference in this connection be made to PLD 1976 SC page 53. In the instant case there is no possibility of the occurrence having gone un witnessed as the same took place just in front of the 'Devri' of the house of the complainant as such the assailants in the presence of sufficient light cannot escape unidentified. Having closely scrutinized the ocular testimony and its intrinsic value, we feel that the same inspires confidence, therefore, the same rings true, as such, we are of the view that the defence plea is not plausible and we ignore the same. In the circumstances, narrated above, the appeal has no merit and is dismissed. Consequently, the revision petition for the enhancement of the sentence also fails and is dismissed.