' IJAZ-UL-HASSAN, J.-- Appellant Khan Badshah, a retired School Teacher, was tried by learned Additional Sessions Judge, Mardan at Takhat Bhai, on a charge under section 302/34, P.P.C. For having, in furtherance of his common intention with absconding co-accused Khisro, caused the death of his co-villager Wazir Khitab by firing. Vide judgment, dated 16-11-1999, the learned Additional Sessions Judge found appellant guilty of the said charge and thus, the appellant was convicted under section 302/34, P.P.C. And awarded R.I. For 25 years and fine of Rs,25,000 or in lieu thereof to undergo S.I. For one year. He was also directed to pay a further sum of Rs,25,000 to be paid as compensation to the hairs of deceased under section 544-A, Cr.P.C. Or in default thereof to suffer S.I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. The appellant feeling aggrieved of his conviction and sentence, has challenged the same by way of filing instant Criminal Appeal No,364 of 1999, which is before us for consideration.
3. The crime in question is alleged to have taken place on 2-6-1994 at 18-00 hours near the shop of one Ranizeb, situated in Daga Sarak leading to Gujar Garhi, Bughdada and the matter was reported to the police the same day at 18-55 hours by complainant Zar Khitab P.W., uncle of Wazir Khitab victim of assault.
4. The events which led to the murder of Wazir Khitab deceased in this case as narrated by the complainant are that on the day of occurrence i,e, 2-6-1994 at about 18-00 hours, he (complainant) alongwith Said Badshah and Bacha Khitab of his village, was present in the Daga and busy in talking with each other and Wazir Khitab (victim) was sitting near the shop of Ranizeb, outside the Daga, when a Suzuki came and stopped there. Khan Badshah and Khisro duly armed alighted from the Suzuki and opened fire at Wazir Khitab, as a result of which Wazir Khitab was hit and became unconscious. The complainant and his companions namely Said Badshah and Khitab Badshah witnessed the occurrence. Explaining the motive it was stated that a month prior to the incident an altercation between Wazir Khitab and accused Khan Badshah and Khisro had taken place on account of which the mentioned accused were nursing grudge against Wazir Khitab.
5. A.S.-I. Amanullah Khan (since dead) recorded the report of the complainant in the Casualty Ward of D.H.Q. Hospital, Mardan, in the shape of Murasila (Exh.P.A.) and dispatched the same to Police Station Takht Bhai where it was incorporated in F.I.R. (Exh.P.A./1) by A.S.-I. Tamash Khan (P.W.2). Injury sheets Exh.C.W.1/1, Exh.C.W.1/3 and inquest report Exh.C.W.I/2 in addition to site plan Exh.C.W.1/4 and recovery memos. Exh . P. W.5/2, Exh . P. W .4/1 and Exh. P. W.5/1 were prepared by A.S.-I. Abdul Ghani. On completion of investigation P.W. Sultan Ali Khan, S.H.O. Police Station Takht Bhai submitted complete challan against the accused on 13-7-1994. After the occurrence the accused left the village and went into hiding. The accused was arrested by S.H.O. Police Station Pishtakhara, Peshawar and he was transferred to Police Station Takht Bhai on 26-7-1998. Wazir Khitab succumbed to his injuries and expired in the hospital the same day. The post-mortem examination was conducted by Dr. Muhammad Akram, the then Medical Officer, D.H.Q. Hospital, Mardan on 2-6-1994 at 11-00 p.m. The doctor has since gone abroad. The report (Exh.C.W.2/1) prepared by him has been testified by his colleague Noor Islam (C.W.2) Medical Officer, D.H.Q.
Hospital, Mardan. On external examination of deceased, following injuries were noted:--
(1) Fire-arm entry wound on left side of the skull left parietal bone size I x 1 c.m.
(2) Corresponding fire-arm exit wound on right side of skull (right parietal bone) size 5 x 5 c.m.
(3) Fire-arm entry wound on antero medial aspect of left thigh size 1 x 1 c.m., lower 1/3rd of the thigh.
(4) Corresponding exit wound on the back of the thigh in lower 1/3rd of it.
Internal examination ' Stomach was found healthy and empty. Scalp, skull, membranes and brain were found injured.
' In the opinion of the doctor the cause of death was due to injuries to the vital organs i,e, brain by fire-arm resulting in shock and death due to bleeding and cardeo respiratory arrest.
6. In order to substantiate the charge prosecution examined ten witnesses. The statements of A.S.-I.
Tamash Khan and Dr. Noorul Islam were recorded as C.W.1 and C.W.2 respectively.
7. In. His statement recorded under section 342, Cr.P.C. The appellant admitted his relationship with co-accused Khisro but denied the prosecution allegations and claimed to have been falsely charged. He also denied the absconsion and stated that he did not abscond and having come to know of the charge, he voluntarily surrendered to the police. His statement was also recorded on oath wherein he asserted that after . Retirement in 1993, he shifted to Bara, Khyber Agency and started running a private school. He is innocent and falsely implicated.
8. The trial Court after recording evidence and reappraisal of entire material brought on record expressly observed that prosecution had duly established accusations against appellant.
Therefore, on the reasoning contained in judgment, dated 16-11-199 he was found guilty and convicted and sentenced as noted above in the opening paragraph of this judgment.
9. Mr. Isaac Ali Qazi, Advocate, appeared on behalf of the appellant and vehemently contended that the appellant was convicted on a very highly interested, contradictory and doubtful evidence, therefore, the conviction is liable to be set aside. He also urged that the learned trial Court denied the benefit of reasonable doubt to the appellant arising out of discrepancies and inconsistencies in evidence and convicted the appellant on the basis of hypothesis. Adverting to the depositions made by Zar Khitab Badshah (P.W.3) and Bacha Khitab (P.W.4), the learned counsel reiterated that the claim of mentioned witnesses having seen the crime stands belied by a host of circumstances and as such the learned trial Court had no justifiable reason to place implicit reliance on their testimony and ignore the defence produced by the appellant wherein it was specifically stated that the appellant had no hand in the murder of Wazir Khitab deceased and that after retirement in 1993, the appellant abandoned his original abode and shifted to Bara, Khyber Agency where he started running a private school. The learned counsel also submitted that the medical evidence does not support the charge and it tends to suggest that more than one accused person had participated in the incident which clearly indicates that Zar Khitab and Bacha Khitab P.Ws. Were not present at the site of occurrence and had not seen to the incident. Adverting to the abscondence, the learned counsel added that it is meaningless because it can neither remove the defect of the oral evidence nor is by itself sufficient to justify conviction. The abscondence in this case, no doubt, is for a very long time for about four years but abscondence alone, cannot be a substitute for real evidence. People do abscond though falsely charged in order to save themselves from agony of protracted trial. Sometimes they did disappear, because of the fear of the police and even of the complainant-party. In this regard reliance was placed on Taj Muhammad v. Pesham Khan and others 1986 SCM R 823. Concluding the argument, the learned counsel reiterated that F.I.R. Has been lodged after delay which clearly reveals that it was the result of consultation and deliberations. In support of the contentions that the learned trial Judge had no good reason to believe the eye-witness account of the incident supplied by Zarkhitab and Bacha Khitab P.Ws. Totally ignoring the discrepancies and contradictions in their statements and forming the same as basis of conviction of the appellant numerous rulings were cited. Some of the rulings cited are: (1) Saindad and 2 others v. The State 1972 SCM R 74, (2) Faqir Muhammad v. Muhammad Ramzan and others 1982 SCM R 41, (3) Ghulam Jaffar v. Allah Dad and 2 others 1995 SCM R 173, (4)
The State v. Muhammad Sharif and 3 others 1995 SCM R 635, (5) Zafar Hayat v. The State 1995 SCM R 896, (6) Raheb and 3 others v. The State 1980 PCr.LJ 336 and (7) Shaukat All v. The State 1994 PCr.LJ 1363.
10. Mr. Tariq Javed, learned State counsel, on the other hand, rebutted the arguments addressed on behalf of the appellant, supported the impugned judgment and attempted to argue that ocular account of the tragedy supplied by the eye-witnesses was consistent and inspired confidence as they had stood the test of cross-examination fully and contradictions in the statements of the said witnesses were insignificant and did not contradict essential features of the prosecution case and was natural variation which was bound to happen due to examination of the witnesses after about four years of the incident. The learned counsel contended that though the ocular testimony alone was sufficient for conviction of accused, yet the same was further corroborated by the motive, medical evidence and unexplained absconsion of the accused. The prosecution having succeeded to establish its case against the accused, the learned trial Judge was fully justified to pass an order of conviction.' To substantiate the pleas, reliance was placed on: (1) Tariq Sayed v. The State PLD 1977 Kar. 235, (2) Muhammad Hassan v. Tariq Saeed PLD 1977 SC 451, (3) State v. Habibur Rehman PLD 1983 SC 286, (4) Shah Nawaz and others v. The State PLD 1959 Kar. 383, (5) Ghulam Sikandar v.
Mamraiz Khan PLD 1985 SC 11, (6) Muhammad Iqbal v. Abid Hussain 1994 SCM R 1928, (7) Yaqoob Khan v. The State 1994 SCM R 672, (8) Niaz v. The State PLD 1960 SC 387, (9) Nazir v. The State PLD 1962 SC 269, (10) Subhan v. Raheem PLD 1994 SC 178, (11) Sardar Khan v. The State 1998 SCM R 1823,
(12) Iqbal alias Bhala v. The State 1994 SCM R 1, (13) Muhammad Ahmad v. The State 1997 SCM R 89,
(14) Khairu v. The State 1981 SCM R 1176 and (15) Javed Ahmad v. The State 1978 SCM R 114.
11. We have heard at length the arguments and submissions of learned counsel for the parties with reference to the material available on record. We have also gone through the evidence minutely with the assistance of learned counsel for the parties.
12. It is not denied that conviction must be found on unimpeachable evidence and certainty of guilt and hence, any doubt that arises in the prosecution case must be resolved in favour of the accused and it is imperative for the Court to examine and consider all the relevant proceedings and leading facts to the occurrence so as to arrive at correct conclusion. It needs no reiteration that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as of right.
13. In the instant case, besides the complainant two other witnesses, namely, Said Badshah (abandoned) and Khitab Badshah are shown to have seen the occurrence. There is no doubt that complainant Zar Khitab and P.W. Bacha Khitab are close relations of deceased but law of prudence requires to assess relevant factors, background of circumstances, type of accusations, quality of statements and unimpeachable nature of statements given by the eye-witnesses and thereby to ascertain whether the version brought forth is appealing and confidence-inspiring and should be relied upon. When seen in this context, we find that both these witnesses have stood the test of searching cross-examination. Their testimony on the salient feature of incident is consistent and materially corroborate each other. Their version could not be impeached or dislodged despite lengthy cross-examination. There does not exist any improvement. The discrepancies and contradictions in their statements, pointed out by the learned defence counsel are insignificant and create no dent in the prosecution case. So far as the relationship of the witnesses with deceased is concerned, it is not denied that in criminal administration of justice evidence furnished by independent witnesses related to victim cannot be discarded merely for the reason that the witness has relationship with the deceased. Mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused.
Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. Nazir v. The State PLD 1962 SC 269, Khalil Ahmad v. The State 1976 SCM R 161 and lqbal alias Bhala and 2 others v. The State 1994 SCM R 1. In the present case, P.Ws. Zar Khitab complainant and Bacha Khitab are not interested witnesses as nothing has been brought on record to show that they had motive for falsely implicating the appellant or were personally involved in any act of enmity between the parties. The accused and absconding co-accused were nursing grudge against the deceased in view of the altercation stated to have taken place a month prior to the incident and the eye-witnesses had no direct concern with the motive alleged. We are satisfied that eyewitnesses were present at the time of occurrence, they have accounted for their presence at the spot satisfactorily and had seen the turmoil which culminated in the death of the deceased. The prosecution case also finds corroboration from medical evidence, motive and noticeable abscondence of the appellant.
14. The occurrence having taken place on 2-6-1994, the appellant was arrested by Pishtakhara Police and transferred to Takht Bhai on 26-7-1998. There is long abscondence for more than four years. The plea of the appellant was that he did not abscond and that he was in Khyber Agency running a private school. Nothing has been brought on record in support of the stand taken by the appellant. The mere assertion of the appellant that after retirement he left the village and started living in Khyber Agency, without a positive attempt on his part to substantiate the same, is of no consequence. It is true that mere abscondence of an accused person cannot be considered enough to base conviction but it is equally true that onus to prove abscondence is on the accused and in the instant case, abscondence has not been satisfactorily explained. Learned counsel for the appellant has not been able to persuade us to hold that the appellant did not abscond and he appeared before the police voluntarily. The noticeable abscondence of the appellant is a strong corroborative piece of evidence and a pointer towards his guilt.
15. With regard to medical evidence and the dimension of injuries found on the person of the deceased, it is submitted by the learned counsel for the appellant that one person seems to have a hand in the offence and two persons have been implicated with mala fide intention.
' The submission of the learned counsel is not sustainable. The deceased lost his life as a result of firing and during the post-mortem examination two entrance wounds were noted on the dead body. The medical evidence in line with the prosecution story. The rulings cited by the learned) counsel in this respect proceed on different facts and do not promote the case of the appellant in any manner. The same are clearly distinguishable and have no bearing on the instant case.
16. In addition to the complainant, Said Badshah and Bacha Khitab are shown to have witnessed the occurrence. Said Badshah has been abandoned by the prosecution. It is asserted by the learned counsel for I the appellant that P.W. Said Badshah has been withheld by the prosecution without any valid reason which makes the prosecution case doubtful. The objection is not sustainable. It is a quality of evidence and not quantity of evidence which matters and persuades a Court of law to convict or acquit an accused person.
17. A month prior to the occurrence, an altercation is stated to have taken place between the appellant and the deceased. This incident is alleged to have provided a motive to the appellant to take life of the deceased. It is contended by the learned counsel for the appellant that prosecution has not succeeded to establish motive and the motive remains shrouded in mystery. The submission is without force. Ample evidence has been brought on record in support of the motive which has remained unchallenged.
18. Concluding the arguments, an attempt has been made to show that F.I.R. Has been lodged with delay as a result of consultations and deliberations and that it is silent regarding essential features having direct hearing on the case. This argument is equally without force. The matter has been reported to the police without loss of time excluding all possible chances of consultations and deliberations. The F.I.R. Contains all necessary details and nothing significant seems to have been omitted therefrom.
19. Having given our anxious thought to the arguments of the learned counsel for the parties, we feel that preponderance evidence on record, as rightly appreciated by the trial Court, is sufficient for holding the appellant guilty of the charge. There is hardly any substantial ground for lawfully challenging the impugned judgment. The appeal is dismissed and the impugned judgment is maintained.