' SHAHZAD AKBAR KHAN, J.--- The appellant Muhammad Hayat son of Dost Muhammad has filed the instant appeal to challenge the correctness, legality and propriety of the judgment and order, dated 4-11-1997 whereby the learned Additional Sessions Judge/Izafi Zila Qazi, Malakand at Dargai convicted the appellant under section 302, P.P.C. And sentenced him to rigorous imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to the appellant.
2. The criminal law was brought into motion when the complainant Abdus Salam lodged the report in Police Station Kopar (Malakand) regarding the murder of his brother Abdul Aziz which culminated into F.I.R. No,38, dated 28-12-1995 under section 302/411, Q.D.O. The complainant stated in the F.I.R. That on the eventful day at about 15-35 hours when he came to his house from Timergara he saw his brother Abdul Aziz lying dead in the house. He saw bullet injuries on right and left sides of the neck and on the shoulder of the deceased. He was informed by his brother Abdur Rashid and Saleem Javed the son of the sister of his father (P.Ws.8 and 7 respectively) that while they were present on the road, Abdul Aziz was coming in a Suzuki towards the house and when reached the Lalma Ghani Bridge, there Muhammad Hayat the appellant, Siraj absconding accused and Faizullah acquitted accused sons of Dost Muhammad Residents of Lalma Ghani Dheri deboarded the deceased from the Suzuki and the appellant fired with his Kalashnikov on the deceased with which he was hit and injured on his right side neck who subsequently succumbed to the injuries. The occurrence was claimed to have been witnessed by Abdur Rashid and Saleem Javed with the possibility of witnessing by some others. The motive which triggered the crime was that about 5/6 months back the deceased had entered into marriage with Mst. Afsana who is the niece of the appellant. The appellant and his co-accused were unhappy over the said marriage.
3. On denial to the charge by the appellant the prosecution in order to prove its case examined ten witnesses.
' P.W.1 is Habib Badshah, Post Commander Levy Post Aagra. He submitted challan under section 512, Cr.P.C. On 13-2-1996.
' P.W.2 is Dr. Tahir, Medical Officer, Civil Hospital, Dargai. He examined the dead body of the deceased and found an entry wound on the right side of the neck 2" below the right ear size 1/3" and an exit wound on left side of the neck 2-1/2" below the left ear 2" in size. Injury was described as one of fire-arm.
' P.W.3 is Alamzeb, Post Commander Levy Post Kalangi. On application submitted by him warrant under section 204 and proclamation under section 87, Cr.P.C. Were issued against the appellant and his co-accused namely, Faizullah and Siraj. On his application the blood-stained attire of the deceased and blood-stained earth were sent to the Forensic Science Laboratory. The report received is Exh.
' P.W.4 is Niamat Khan No,3505 of Levy Post Quaid Abad. He executed the warrant under section 204 and proclamation under section 87, Cr.P.C. Against the appellant.
' P.W.5 is Mst. Afsana who deposed regarding her marriage with the deceased which offended the appellant and his co-accused and apprehending danger to their lives she and the deceased left their own village and were residing with the maternal-grandfather of the deceased at Quaid Abad.
On the day of occurrence the deceased had left for Sakhakot for medical treatment and on his way back he was murdered by the appellant and his co-accused.
' P.W.6 is the complainant who affirmed the contents of the F.I.R.
' P.W.7 is Saleem Javed who appeared as an eye-witness and stated in the trial Court that on the eventful day he alongwith P.W. Abdur Rashid and other co-villagers were present at the venue of the occurrence. The deceased sitting in the Suzuki was dismounted by the accused and the appellant fired at him with his Kalashnikov and was injured on his right side neck below the ear. The deceased, then injured, was being taken to the hospital but on their way he expired. He also stated that the accused were his relatives. Regarding the site plan he had made pointation. He was also a witness to the recovery memo. Exh.. {{URDU TEXT}} , pertaining to the taking into possession of the bloodstained earth from the venue of the crime. Similarly, he is an attesting witness to Exh. {{URDU TEXT}} vide which the blood-stained clothes of the deceased were taken into possession.
' P.W.8 is Abdur Rashid. He is brother of the deceased and his age at the time of recording his statement was 10/11 years. After testing his level of mental maturity by putting several questions to him he was examined by the trial Court. He deposed that he had left his house for collecting wood.
He and P.W. Saleem Javed were present at the bridge and in the meanwhile a Suzuki reached there. Faizullah, Muhammad Hayat and Siraj dismounted his brother from the Suzuki. Muhammad Hayat fired at him with which he was injured and subsequently died. The accused are stated to be his relatives and co-villagers.
' P.W.9 is Bakht Munir who recorded the F.I.R. Which was thumb-impressed by the complainant. The witness accepted his signature on the F.I.R. Exh. He in the company of Post Commander visited the house of the deceased and his injury-sheet was prepared. Statements of the P.Ws. Were recorded, site plan was prepared at the instance of P.W. Saleem Javed, the blood-stained earth and pebbles were taken into possession and the dead body of the deceased was sent for the post-mortem examination. Thereafter, the case file was handed over to Shams-ur-Rehman and Alamzeb.
' P.W.10 is Aleem Jan. On his direction the report of the complainant was recorded into F.I.R. He accepted his signature on the report as correct and being an associate of P.W.9 in the investigation he narrated the same version as given by P.W.9.
4. On the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C.
In his statement the appellant stated that Mst. Afsana was not his real niece, however, he accepted that she is related to him. He denied the commission of the offence and also denied his abscondence by explaining that he was employed in the Frontier Constabulary and was present on his duty. He also denied his unhappiness over the marriage of Mst. Afsana with the deceased.
The appellant neither produced any defence nor he examined himself on oath.
5. The cumulative outcome of the above summary is that the case of the prosecution mainly rests upon the ocular testimony of P.Ws. Saleem Javed and Abdur Rashid, the motive, post-mortem report, the report of the F.S.L. Regarding the blood-stained earth and abscondence of the appellant.
6. The learned counsel for the appellant submitted firstly that in the statements of Saleem Javed and Abdur Rashid recorded under section 161, Cr.P.C. The name of the deceased was mentioned as Taj Muhammad and not Abdul Aziz and there is no evidence to show that Abdul Aziz was carrying the alias of Taj Muhammad. Thus, the very identity of the deceased is doubtful.
' Secondly, he submitted that in cross-examination Abdus Salam complainant stated that he came to his house at about 4-30 p.m. Whereas the report was lodged at 15-50 p.m. Which is impossible and the discordance is reconcilable.
' Thirdly, learned counsel for the appellant submitted that both the eye-witnesses are chance witnesses and their testimony cannot safely be relied upon as the same lacks corroboration through other sources and that the Investigating Officer had not taken into possession any wood which was shown to be the purpose of the presence of P.W. Abdur Rashid.
' Fourthly, he contended that P.W. Saleem Javed has not made the report in the police station and without making a report the dead body was taken to the house.
' Fifthly, that according to the version of Mst. Afsana they were residing in Quaid Abad but there is no such locality by the said name and if they were residing in Quaid Abad why the dead body was not taken to the place of their current residence.
' Sixthly, he contended that if the deceased, then injured, was taken to the hospital, the report should have been lodged in the hospital.
' Seventhly, that the prosecution has not been able to bring forth any independent eye-witness in support of its case notwithstanding the fact that according to P.W. Saleem Javed their co-villagers were also present on the spot.
' Lastly, he contended that in view of the nature of the injury and in view of the fact that the deceased was having a Kalashnikov, the said Kalashnikov accidently went off while the deceased was getting down from the Suzuki and he suffered self-sustained injuries and in view of the fact that there is irreconcilable discordance between the time of report and the arrival of the complainant in the house i.e, 4-30 p.m. The possibility cannot be ruled out that the complainant party was busy in consultation over the false involvement of the appellant.
7. On the contrary the learned counsel for the complainant and the learned Additional Advocate- General have defended the impugned judgment and the ensuing conviction and sentence on almost similar reasons and grounds that are given by the learned Additional Sessions Judge/Izafi Zila Qazi in his judgment.
8. We have heard the rival arguments from both sides and have anxiously examined the entire record. So far as the first submission of the learned counsel is concerned it was admitted by him that no person by the name of Taj Muhammad is known to be dead on the day of occurrence. The only murdered person was Abdul Aziz and P.W.9 i.e, Bakht Munir has resolved this dilemma by saying that the name of Taj Muhammad was erroneously written and he has accepted such an error. We may also observe that when a reasonable explanation is offered by a P.W. For removing any confusion (not doubt) it has to be considered and resolved in accord with the balance of circumstances. In view of the clearcut admission by the defence counsel that no person by the name of Taj Muhammad had died on that day and the only occurrence was the death of Abdul Aziz, in such circumstances, the mere error of writing the name as Taj Muhammad is not of such a character which casts any doubt on the factum of the death of deceased Abdul Aziz and as such is of no significance for the defence.
' The second contention regarding the time of arrival of the complainant Abdus Salam in his house at 4-30 p.m. Is not very material because the complainant Abdus Salam is not an eye-witness. He has merely narrated the information conveyed to him by P. Ws. 7 and 8 as mentioned in the F.I.R.
Moreover, in the F.I.R. He has specifically given the time of his arrival in the house as 15-35 hours.
Hence, this insignificant variation regarding the time of his arrival mentioned in the F.I.R. And in his cross-examination does not have the effect of undermining the entire evidence of the prosecution.
' The third objection is that the eye-witnesses are chance witnesses. It is a fact that P.W. Abdur Rashid has unequivocally stated in his statement that he had left the house for the purpose of collecting wood and as such he alongwith the P.W. Saleem Javed were present at the bridge where the occurrence had taken place. It is obviously a hilly area and the residents of the area in usual course of events got out for collecting the woods particularly for the purpose of using it as a fuel.
This witness was aging 10/11 years and the purpose of his presence shown by him does not in any manner lag behind the realities and thus, his presence on the spot at the time of occurrence cannot be looked at even with a slightest amount of doubt. If the prosecution wanted to induct a false witness then a boy of 10/11 years of age could not logically be chosen for the purpose because it is known to the prosecution that a minor of tender age would not be able to stand the powerful test of cross-examination as the induction of such a small boy was obviously fraught with the danger of being misled by the cross-examiner. This witness has been thoroughly cross-examined but his testimony was in no manner shattered. It remains a fact that the evidence of a truthful witness can hardly be damaged by the cross-examiner, therefore, we have no reason to disbelieve the testimony of this witness. Moreover, the testimony of Saleem Javed (P.W.7) also rings 'true and on all material points he supports the evidence of P.W.8. The only words " {{URDU TEXT}}" uttered by this P.W. In view of the other attending circumstances of this case cannot bring them within the ambit of chance witnesses. Even if for the sake of arguments P.W. Saleem Javed is accepted as a chance witness even then his testimony is not liable to an outright rejection as the Courts can accept the testimony of the chance witness provided the same is corroborated by other evidence.
Chances do occur in life as the happening of the chances is integrated with the life and it is not a mere impossibility. Facing the testimony of a chance witness the Court has to remain only alert to look around for the corroborative evidence. Reliance can be placed on Muhammad Ashraf and another v. The State PLD 1977 SC 538.
9. In the instant case the eye-witnesses were present on a bridge where several other people were also present which means that on this bridge usually people gather even without any purpose. As a matter of abundant caution if we were to exclude the testimony of P.W. Saleem Javed, we are C fully convinced that the statement of P.W. Abdur Rashid (P.W.8) supported by the evidence of motive, the medical evidence and the recovery of bloodstained pebbles coupled with the abscondence fully established the guilt of the appellant. We may also observe that P.W. Abdur Rashid had, a very short while ago, left his house for the purpose of collecting wood and he had stated in the cross-examination that 10/15 minutes before the occurrence he had left his house.
Thus, in this short span of time he might have not collected the wood and the phase of collection of wood had not by then reached. Therefore, the question of taking into possession the wood does not arise. The witness had nowhere stated that he had collected the wood but only the purpose of collecting the wood was mentioned by him.
10. The fourth contention of the learned counsel for the appellant that P.W. Saleem Javed has not made the report is also of little significance and cannot outweigh the ocular account of the eye- witnesses and other circumstantial evidence.
11. The fifth limb of the argument is that there is no locality by the name of Quaid Abad which was taken as an asylum by the deceased and Mst. Afsana. In this respect it appears that the learned counsel for the appellant has lost sight of the cross-examination of P.Ws. Mst. Afsana wherein a positive suggestion was given to her that the distance between Lalma and Quaid Abad might be about two miles and the distance between Quaid Abad and Ghani Dheri about 3-1/2 miles. The trend of this question eloquently speaks that the locality by the name of Quaid Abad is very much existent. Moreover, there is not even a single word to suggest to this P.W. That in fact there is no village/locality by the name of Quaid Abad. After the death of the deceased there remained no apprehension of any further danger at the hands of the appellant, therefore, the dead body was taken to his native village instead of Quaid Abad.
12. Regarding the sixth contention, suffice it to say that the deceased, then injured, was being taken to the hospital but he died on the way before reaching the hospital. Therefore, the question of lodging the report in the hospital would not arise.
13. The seventh submission of the learned counsel is also without any force, firstly, for the reason that this is a common feature of our social culture that no independent person would come forward to depose against a murderer obviously for the reason of avoiding the wrath of the desperate man. Secondly, that there was sufficient evidence that the prosecution and the eye- witnesses are related to the accused party. Thus, the question of false involvement in this case is not conceivable.
14. The last submission of the learned counsel is also destitute of force as the nature and seat of the injury on the deceased is such that it cannot be considered as self-sustained injury. Such kind of injury is only possible when an assailant aims his weapon on the victim as the missile entered the neck and in the same level the exit was found. The learned counsel with great stress referred to the statement of P.W.7 wherein he uttered these words:-- {{URDU TEXT}} ' In fact this was a compound suggestion and this portion of the statement of the witness starts with a denial to the suggestion by the witness and in continuity of the said suggestion the sentence, which is stressed upon by the defence counsel, was recorded. It is appropriate to reproduce the relevant words:-- {{URDU TEXT}} ' Had the suggestion been accepted, the same must have been preceded by the words {{URDU TEXT}}. The absence of such words clearly speaks that this was not an acceptance of the suggestion. The theory of self-sustained injury appears to have no basis on the record nor it has otherwise anything to commend itself. The record also does not disclose any reason for the false involvement of the appellant.
15. The accused remained absconder for sufficient long time and proceedings under section 204/87, Cr.P.C. Were duly completed against him but the explanation offered by the accused in his statement under section 342, Cr.P.C. Is that he did not abscond and was very much on his duty as he was an employee of the Frontier Constabulary. Neither any defence witness was examined nor any record from his office was produced to show that he was present on his duty and as such his explanation goes unsubstantiated. Thus, it could be justifiably believed that he absconded himself after the occurrence.
16. Having carefully considered the contentions raised by the learned counsel for the appellant in the light of the evidence on record, we are convinced that no fault could be found with the assessm ent of evidence by the trial Court. We have not been able to find any vitiating element of the nature of misreading or non-reading of the evidence and as such the impugned conviction and sentence is not open to any exception.
' As a result of the foregoing discussion, we see no force in this appeal which is hereby dismissed.