' MUHAMMAD QAIM JAN KHAN, J.--- The instant appeal has been filed by Shah Qiaz Khan appellant against the order of Additional Sessions Judge, Lakki Marwat, dated 12-7-2000 vide which the appellant has been convicted under section 302-B, R.P.C. And sentenced to death and to pay a fine of Rs, one lac, as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Facts of the case are that on 28-3-1993 at 23-15 hours Mst. Gulzara reported to the Police Officer that at 22-45 hours, she was present in the house alongwith her husband Hashim Khan when somebody knocked at the door of the house. She alongwith her husband came out of the room and her husband opened the door when suddenly Shah Qiaz son of Malik Sheradar of Saeedabad Naurang, entered the house and asked her husband about the television. Her husband replied that the television has been taken by Umar Ayaz and when her husband reached the door of the Kotha, the said Shah Qiaz fired at her husband with a .12 bore pistol, with which he was hit and fell down on the ground. The accused decamped from the spot of occurrence and on the hue and cry of the complainant, people in the vicinity were attracted to the spot. The injured was placed on a cot and when they were going to the police station, her husband died enroute. According to the complainant she was unaware of any enmity between the deceased and the accused.
3. The Investigating Officer reached the spot, prepared the recovery memo., site plan etc. Despatched the dead body to the mortuary. After completion of the investigation, challan was submitted to the Court. The accused was summoned and charged under section 302, P.P.C. For the murder of Hashim Khan deceased to which he did not plead guilty and claimed trial, and trial commenced. The prosecution examined Dr. Altaf Hussain, M.O. C.H. Naurang as P.W.1, Azeem Khan No,66, I.H.C. Police Station Naurang as P.W.2, Muhammad Ismail Khan No,78, Police Station Naurang as P.W.3, Mst. Gulzara as P.W.4, Farid Khan, S.H.O. Police Station Naurang as P.W.5, Sanaullah Khan, S.-I., Police Station Cantt., as P.W.6, Bashir Khan son of Dilawar Khan as P.W.7 and Gul Bad Shah No,1022, LHC Police Station City Bannu as P.W.8, after which the prosecution closed its evidence. The accused was examined under section 342, Cr.P.C. He pleaded innocence but produced no defence.
Consequently, after hearing the prosecution and the defence, the trial Court passed the impugned judgment.
4. The learned counsel for appellant mainly stressed that the occurrence is not so as depicted by the prosecution in its case. According to him it was a night occurrence and the prosecution has planted the recovery of 100 volt bulb in order to clarify the identification of the accused. The learned counsel mainly stressed that there is great difference between the site plan and the statement of the sole eye-witness (Mst. Gulzara complainant). The statement of the sole eye- witness, Mst. Gulzara negates the site plan. Moreover, according to the site plan the distance between Point No,2 and Point No,1 which are the places of the deceased and the accused, is 3 paces which means 12 feet and the distance is so which belies the prosecution version and moreover, the statement of Medical Officer belies the site plan as according to the Doctor there were six entrance wounds of fire-arm on right lateral side of chest lower part within area of 3" x 3" size 1/4" x 1/4" each with black charring marks, skin muscle, bone and cavity deep. There was also one graze wound of fire-arm on medial side of right upper arm just above elbow joint with black charring marks size 3" x 2" skin and muscle deep. So keeping in view the charring marks and the distance between the deceased and the accused which is 12 feet, totally negates the prosecution version because charring marks are only possible within the range of 3/4 feet. The learned counsel further argued that there are cuttings of dates on all the memos. Which create doubt and they have not been initialled by the Investigating Officer. The Investigating Officer has not given the length and breadth of the courtyard which is quite important as question of identification of accused is involved. According to the appellant's counsel there are many contradictions between the statement of P.W. Mst. Gulzara complainant (widow of the deceased) and the statement of the Investigating Officer and these glaring contradictions have been deliberately ignored by the trial Court. According to P.W.4 accused was hit by the fire shot of the accused in the courtyard of the house and she took him in her lap and blood was oozing from the wounds of the deceased. But according to the Investigating Officer, the occurrence has taken place in the Verandah and not in the courtyard. The counsel for the appellant stressed that in the site plan no outer door has been shown by the Investigating Officer and as per site plan there is distance of 36 to 40 feet between the main gate of the house and the door of the Kotha. So, all these material contradictions created shadow of doubt which shall go in favour of the accused.
5. We have heard the learned counsel for the prosecution and the defence and with their help, have also gone through the record.
6. In the present case there is only one eye-witness i.e, complainant Mst. Gulzara. She is a natural witness and her presence cannot be discarded being wife of the deceased. As regards the question of the identification of the accused, the accused was known to the deceased as well as the complainant as she has stated in her statement that the accused Shah Qiaz Khan was living in the Mohallah where the house of her father is situated and the objection of the learned counsel for the appellant that 100 volt bulb was planted to identify the accused, holds no ground. Another factor in the instant case is that no motive has been alleged by P.W.4 (complainant).
' There was no enmity, no previous feud, or malice between the deceased and the accused, so in the absence of any motive, the objection of substitution or false involvement stands nowhere.
Coming to the site plan admittedly, the site plan does not negate ocular version as the house is a small one. There is no bifurcation between the courtyard and Verandah and the door of the room which opens towards Verandah, is also in front of the courtyard.
7. When the venue of crime is not doubtful as occurrence has taken place in a small town in the house at night time, the presence of wife in the company of her deceased husband is rather natural.
No doubt that testimony of sole witness on a capital charge generally is not considered sufficient without very strong corroboration but this cannot be a rule of thumb and general application because at times and in the circumstances there is no possibility of availability of or presence of any second witness, like in the present case when husband and wife were living in a house without any evidence that the said house was inhabited by third person.
8. Therefore, if in a case the ocular account is furnished by single witness, with no animus shown toward the assailant who is singly charged for the offence, testimony of sole witness if otherwise reliable can be taken sufficient evidence for conviction.
9. Regarding medical evidence, it fully supports the ocular version of the complainant. The deceased has been shot by .12 bore pistol from a very close range, and thus, charring marks are quite visible on the body of the deceased. Three pellets have been recovered from the spot while one pellet has been recovered from the dead body. The learned counsel for the defence has also desperately failed to extract something from the mouth of the Medical Officer which could go in favour of the accused but he badly failed in his attempt. The perusal of the cross-examination of the Medical Officer shows that the defence has obtained nothing from the cross-examination. The recoveries from the spot too favour the prosecution case in toto. Last of all, the long abscondence of the accused fully corroborated the prosecution version. The accused remained in abscondence for six years and six days. In his statement recorded under section 342, Cr.P.C. He stated that during the days of occurrence, he was residing with his relative at Karachi but strangely enough that relative has not been produced in defence. The attitude of the accused i.e, coming late at night and asking for television, shows that there was a hidden intention in his mind as he came armed at such odd hours at the house of the deceased.
10. When defence has failed to lay foundation for false charge by putting suggestion in this regard, and when though other suggestions are put but not that presence of witness directly denied at the time of occurrence then defence cannot argue on such premises. Foundation for arguments are to be first laid in cross-examination or be such which are inferable from the trend of cross- examination.
11. In brief this is a case of single accused, sole eye-witness who is a natural witness, there is no question of mistaken identification. The site plan, recoveries and the medical evidence do support the ocular version in toto. There is no chance of any false implication as no motive is alleged and last of all long and unexplained abscondence of the accused right from the date of occurrence till his arrest which is some 6 years and 6 days, corroborates the version of the prosecution. So, in this background of the case, there is no legal force in the instant appeal which is hereby dismissed. The murder reference is answered in affirmative.