SHAIKH ABDUR RAZZAQ, J.- Mst. Shahida Parveen wife of Munawar Ahmad (PW-10) lodged a complaint Ex.PE, stating that her parents reside in Township Lahore, who have got ancestral house situated in. Ferozwala District Gujranwala, where her brother Tariq Mahmood alias Mithu has been residing all alone and had been taking his meals from her house. That her brother had to recover some amount from Muhammad Akhtar son of Muhammad Akbar and in lieu of that he snatched his watch on 8.6.1989. He (Muhammad Akhtar) brought this fact into the notice of his uncle Muhammad Boota. Accordingly hot words were exchanged between Muhammad Boota and his brother on 8.6.1989 at about evening time. She came to know about this incident (pertaining to exchange of hot words) later on. On 9.6.1989, she went to her brother and enquired from hint, who told her that there was nothing serious about that and he left for the shop of Shafqat son of Abdul Rashid. Apprehending some foul play she also followed her brother. Her brother stopped in the verandah of the shop at about 8.00 a.m., whereas she kept standing outside the shop in the street. .In the meanwhile, Muhammad Boota and Mahmood Ahmad alias Mooda armed with a 12 bore double barrel guns appeared, who were followed by Muhammad Akbar son of Sultan Ahmad and Muhammad Akhtar son of Muhammad Akbar. When Muhammad Boota and Mahmood Ahmad alias Mooda reached near the shop of Shafqat, Muhammad Akbar and Muhammad Akhtar raised Lalkara that Mithu be not allowed to go alive. Upon their instigation, Muhammad Boota find with his gun which hit her brother on his right flank and right arm. Her brother took refuge in the shop.
However, Mahmood Ahmad alias Mooda find two shots with his gun hitting him on his left arm and on the back of left flank. Tariq Mahmood alias Mithu fell on the spot and succumbed to the injuries.
The motive behind this occurrence is that deceased had snatched watch from Muhammad Akhtar in lieu of the loan outstanding against him which caused annoyance to the accused who in retaliation committed the murder of deceased. She further stated that incident was witnessed by Munawwar and Nasrullah Khan and after leaving the dead-body in their supervision she made for lodging the report.
2. Muhammad Saleem, SI (PW-14) recorded complaint Ex.PE and sent the same to police station for formal registration of FIR. He then made for. The place of occurrence, prepared statements of injuries Ex.PJ., inquest report Ex.PK, handed over the dead-body to Muhammad Sarwar and Muhammad Akram, constables, prepared rough site-plan Ex.PC, secured blood-stained earth vide in nemo. Ex.PH. On 10.6.1989 he secured last worn clothes of the deceased vide memo. Ex.PD which were produced by Muhammad Akram, constable (PW-3). On 11.6.1989, he got the spot inspected by Arif Hussain draftsman (PW-2) who delivered the site-plans Ex.PB and PB/1 on 13.6.1989. On 14.6.1989, the investigation was transferred to Abdul Haq, Inspector (PW-15) who on 19.6.1989, interrogated Muhammad Boota and arrested Muhammad Akbar and Muhammad Akhtar accused on 21.6.1989 and finally submitted the challan.
3. A charge under Section 302/34, PPC was framed against the accused Muhammad Akbar, Mahmood Ahmad alias Mooda and Muhammad Boota alongwith Muhammad Akhtar (Since absconder) on 13.7.1993, to which they pleaded not guilty and claimed trial. However, later on accused Mahmood Ahmad alias Mooda also absconded and proceeded as such on 9.10.1994.
4. To prove its case, prosecution examined Dr. Muhammad Azeem (PW- I) who on 10.6.1989 at 10.00 a.m. Conducted the post-mortem examination on the dead-body of Tariq Mahmood alias Mithu and found the following injuries:
(5) Multiple small lacerated wounds on outer side of right upper arm above elbow. Oozing of blood was present and blackening was present.
(6) Multiple small lacerated wounds on outer side of right side of chest. Oozing of blood was present and blackening was present.
(7) There were 9 a.c.m. Diameter lacerated wounds on left fore arm near elbow. Blood was oozing from the wound. 5 wounds had blackening.
(8) There were 5 lacerated wounds 1 c.m. Diameter each on left side of chest and abdomen. Blood was oozing. Blackening was present around the three wounds In his opinion, death was due to above-mentioned injuries which were sufficient to cause death in the ordinary course of nature. He gave the probable time between: injuries and death as immediate and between death and post-mortem examination about 12 to 24 hours. He produced post-mortem examination report Ex.PM. Arif Hussain, draftsman (PW2) visited the place of occurrence on 10.6.1989, prepared site-plans Ex.PB and PB/1 and delivered the same to the Investigating Officer on 13.6.1989. Muhammad Akram, constable (PW. 3) escorted the dead-body of deceased on 9.6.1989, for post-mortem examination and on 10.6.1989 produced last worn clothes Ex.PI and P2 of the deceased which were secured vide memo. Ex.PD. Baha-ud-Din, ASI (PW-4) deposed about the recovery of a 30 bore pistol from the accused Muhammad Boota on 24.9.1982 as well as of gun P3 on 2.10.1992 which were secured vide memo. Ex.PC. Muhammad Boota, ASI (PW5) deposed about delivering of a sealed parcel containing blood-stained earth in the office of Chemical Examiner Lahore. Muhammad Khan (PW6) is a witness of recovery of memo. Ex.PD, whereas Muhammad Azeem, ASI (PW7) is scriber of formal FIR Ex.PE/1 on the basis of complaint Ex.PE, dated 9.6.1989.-Abdul Hakeem, constable (PW8) deposed about delivering of a parcel containing bloodstained earth in the office of Chemical Examiner Lahore. Maqsood Baig, Constable (PW-9) is a formal witness regarding submission of non-bailable warrants Ex.PG in respect of the accused Muhammad Boota. Mst. Shahida Parveen (PW-10) is the complainant and has corroborated her version appearing in complaint Ex.PE. Bashir Ahmad (PW. 11) deposed about identification of the dead-body at the time of postmortem examination. Ahmad Din (PW-12) and Muhammad Munawwar (PW-13) are eye-witnesses out of whom former resiled whereas the latter corroborated the prosecution version and so also the contents of memos. Ex.PC, PD and PH.
Muhammad Aslam, Inspector (PW14) and Abdul Haq (PW. 15) are the Investigating Officers whose evidence has already been discussed above. On 15.5.1994, the learned DDA produced report of Chemical Examiner Ex.PM, of Serologist Ex.PN and finally closed the case for prosecution.
5. When examined under Section 342 Cr.P.C, the accused Muhammad Boota denied the prosecution version, and in reply to question No. 7 as to why this case has been registered against him, he stated as follows: "One Shakkarullah of my village was a desperate person and was a very close friend of the complainant party. He caused fire-arm injury to me as a result of which 1 lost one right eye. 1 also retaliated against Shakkarullah and a case u/S. 307 was registered against me. I was still not arrested in that case when Tariq Mahmood alias Mithu was killed by some unknown persons. I alongwith my relatives Ch. Akbar Ali and his son Akhtar were involved at the behest of Shakkarullah."
The accused Muhammad Akbar when examined under Section 342, Cr.P.C, also denied the prosecution version and gave an explanation about his involvement while replying a similar question No. 6 in the following words: "Boota co-accused is my cousin. One Shakkarullah a co-villager has brotherly relations with the complainant party. Said Shakkarullah was responsible for causing total destruction of one eye of Boota to which the latter also retaliated and a case u/S. 307 was registered against him. He was still a P.O. In the said case and in the meanwhile, Tariq Mahmood alias Mithu was killed in the village. Shakkarullah aforesaid in collaboration with the complainant party fabricated a false case and involved me as they considered that I could render help to Boota and my other co-accused."
The accused Mahmood Ahmad alias Mooda also termed his involvement in this case as false.
None of the accused either examined himself under Section 340(2) Cr.P.C, or adduced any evidence in defence.
6. After going through the evidence produced by the prosecution, trial Court convicted Muhammad Boota under Section 302/34, PPC and sentenced him to imprisonment for life and fine of Rs.
50,000/-. It was further ordered that out of the said amount a sum of Rs.40,000/- shall be paid to the legal heirs of the deceased and failing which the accused shall undergo R.I. For two years more.
The accused Muhammad Akbar was given the benefit of doubt and was acquitted. The accused Muhammad Boota felt aggrieved and has find the instant appeal.
7. Arguments have been heard and record perused.
8. Learned counsel for the appellant has firstly assailed the motive aspect of the prosecution and contended that motive attributed to the appellant does not appeal to reason. He next argued that prosecution case depends upon the statements of PW10 Mst. Shahida Parveen, PW-12 Ahmad Din and PW13 Muhammad Munawwar, out of whom Ahmad Din (PW12) has not supported the prosecution version, that prosecution- case hinges on the evidence of Mst. Shahida Parveen complainant (PW-10) and Muhammad Munawwar (PW13) who are related inter se as well as to the deceased, as such independent corroboration of their statements is necessary as required by law and relied upon Haji Ahmad and 2 others v. The State (1971 SCM R 326). He further submitted that independent corroboration was available in the form of statement of Shafqat Kashmiri, in front of whose shop incident is stated to have taken place, but he too has not been examined and this fact makes the prosecution story doubtful, 'that prosecution has failed to infer the guilt of appellant on account of his absconder, which is not legally correct approach, as abscondence per se is not a proof of guilt of an person. He submitted that disappearance of a person named as a murdered culprit after the occurrence, is but natural, whether named rightly or wrongly. He further submitted that it may, however, create suspicions against him, but suspicions after all are suspicions and relied upon Rasool Muhammad v. Asal Muhammad and another (PLJ 1995 SC 477) Appellate Jurisdiction). He thus submitted that all these facts clearly prove that trial Court has not passed the impugned judgment in accordance with law and that appeal may be accepted and appellant be acquitted.
9. Conversely, the impugned judgment has been supported by the learned , State counsel. He contended that prosecution has proved the motive asserted in the complaint Ex. P/E, that prosecution version appearing in complaint Ex. P/E. Stands corroborated by the complainant Mst.
Shahida Parveen (PW-10) as well as another eye-witness Muhammad Munawwar (PW-13), that ocular account further gets support from the medical account which has come on record through the statement of Dr. Muhammad Azeem (PW. 1), that even the evidence of recovery of gun P3 fr6m the accused further corroborates the prosecution version. He also submitted that disappearance of the accused/appellant after the occurrence is a strong presumption regarding his guilt.
Regarding non-exemption of Shafqat, he submitted that in our society nobody wants to create enmity with a person charged of capital punishment, as such non-examination of Shafqat in no way effects the prosecution stand.
10. According to prosecution version, occurrence took place on 9,6.1989 at about 8.00 a.m. When the deceased had gone to the shop of Shafqat Kashmiri for purchasing cigarette and Mst. Shahida Parveen (PW-10) was standing behind the deceased and Ahmad Din (PW12) and Muhammad Munawwar (PW-13) were also present there. It was within their view that the accused/appellant alongwith his co- accused arrived on the spot and find at the deceased as a result of which who fell down and died on the spot. Prosecution has brought on record the statement of complainant Mst. Shahida Parveen (PW-10), Ahmad Din (PW-12) and Muhammad Munawar (PW-13). The statement of complainant stands corroborated by PW13 (Muhammad Munawar). However, Ahmad Din (PW12) has not supported the statement of complainant, as such he has been declared hostile.
However, this fact does not detract the evidentiary value of the statements of PWs 10 and 13.
Admittedly, Mst. Shahida Parveen (PW10) is sister of the deceased and Muhammad Munawwar (PW13) is husband of PW10 Mst. Shahida Parveen. Thus PW13 is brother-in-law of the deceased. The mere fact that PWs 10 and 13 are inter related and are also related to the deceased does not make their statements unreliable, in absence of any independent corroboration. Mere relationship of a witness with the deceased is not sufficient to discard his testimony. The real test to discard such testimony is if the said witness has any enmity with the accused to involve him falsely. Both PWs 10 and 13 have been cross-examined at length and defence has failed to bring on record any evidence to discredit their versions. It is only inimical and interested ocular testimony which requires independent corroboration. Besides the ocular account of Mst. Shahida Parveen (PW10) and Muhammad Munawwar (PW13), prosecution has also examined Dr. Muhammad Azeem (PW. 1) whose testimony also corroborates the oral statements referred above. Thus the ocular account stands corroborated by medical evidence.
11. It may also be pertinent to mention here that much stress has been laid on the point that as Shafqat Kashmiri has not been examined, so this fact gives a fatal blow to the veracity of the prosecution version. There is no doubt that Shafqat Kashmiri has not been examined in the instant case, though he is an important witness. However, no adverse inference can be deduced from his non-examination. It is commonly observed that in our Society nobody wants to create an enmity or bloodshed with an accused, what to take of a murderer and that is why it has been observed by the Superior Courts that mere non-examination of a particular witness be a not construed either way, as prosecution has to prove its case independent of non-examining. Of such a witness. Thus non-examination of Shafqat Kashmiri does not make any difference. Again it has been argued that abscondence of accused/appellant is no ground to hold him guilty. There is no doubt that mere abscondence is no ground to hold a person accused of an offence to be guilty of that offence.
However, this fact coupled with attending circumstances/evidence provides further proof to hold a person guilty of an offence. In the instant case, occurrence took place at 8.00 a.m. On 9.6.1989 and the accused/appellant absconded and was arrested in this case on 25.9.1992. Thus this long abscondence goes a long way to connect the appellant with the commission of this offence.
12. The upshot of the above discussion is that prosecution has succeeded in establishing its case against the accused/appellant and trial Court has convicted and sentenced him in accordance with law. The impugned judgment does not call for any interference, as such the appeal fails and is hereby dismissed.