1. ' MUHAMMAD NAWAZ ABBASI, J.---This direct appeal under Article 185 (2) (a) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred against the judgment dated 7-7-2000 passed by a learned Single Judge of the Peshawar High Court, Peshawar, whereby the Criminal Appeal bearing No,315 of 1996 filed by Inayat-ur-Rehman complainant and Criminal Appeal No,26 of 1993 filed by the State through. Advocate-General, N.W.-F.P. Against the acquittal of the petitioner and his co-accused namely, Israr and Sher Alam respectively by the learned Sessions Judge, Mardan from the charge under sections 302/34, P.P.C., were allowed and learned Judges in the High Court while setting aside the acquittal of accused convicted and sentenced them under section 302 (b), P.P.C. To imprisonment for life with a direction to pay Rs,50,000 each as compensation to the legal heirs of the deceased and in default thereof to suffer R.I. For one year each. The convicts were however, extended the benefit of section 382-B, Cr.P.C.
2. ' The relevant facts of the case being in small compass are reproduced as summarised in the judgment of the High Court and narrated in the F.I.R. Lodged by Inayatur Rehman complainant.
3. ' On 23-4-1990 at 17-45 hours Inayatur Rehman complainant, along with his two sons namely, Imtiaz (P.W.) and Mujahid (deceased) went to Bazar in Torn Town for purchases and on return when they reached near Torn Datsun Adda, they were confronted by the accused namely, Sher Alam, Abdur Rauf and Israr armed with kalashnikovs. The accused while addressing Mujahid deceased, opened firing who sustained injuries as a result of firing made by Sher Alam and expired at the spot. The accused then decamped from the scene of occurrence. The motive as disclosed in the F.I.R. Was that prior to the occurrence an altercation had taken place over a petty matter between Sher Alam petitioner and deceased which was settled through the intervention of elders.
4. The report of the occurrence was lodged by Inayatur Rehman complainant at Police Station, Saddar, Mardan. At 17-45 hours i.e, within one hour of the occurrence which took place at 16-45 hours on the same day and a case under sections 302/34, P.P.C. Was accordingly registered vide F.I.R. (Exh.P.A) against the petitioner and his co-accused named therein. Upon completion of investigation, the police submitted the challan against all the accused including the petitioner who was absconding. The learned trial Judge having completed the formalities of law separated the case of petitioner and proceeded with the trial against the remaining accused. -The trial Court having found the said accused not guilty of the charge acquitted them vide judgment dated 16-11- 1992. The petitioner on arrest was tried separately and was also acquitted by the trial Court vide judgment dated 19-9-1996. The State being dissatisfied with the acquittal of Israr and Sher Alam the co-accused of the petitioner, filed Criminal Appeal No,26 of 1993 in the High Court whereas the complainant preferred separate appeal bearing No,315 of 1996 in the High Court against the acquittal of the petitioner in the present petition. The Peshawar High Court, vide a consolidated judgment dated 7-7-2000 allowed both the appeals and converted the acquittal of all the three accused into conviction under section 302(b)/34, P.P.C. And sentenced them as noted above.
5. ' We have heard Mr. Rab Nawaz Noon, learned Advocate Supreme Court for the appellant and Mrs. Musarrat Hilall, learned Additional Advocate General, N.W-F.P. And also perused the record with their assistance. Learned counsel for the appellant has raised the following contentions in support of this appeal:--
(a) That the learned Division Bench of the Peshawar High Court while reversing the judgment of acquittal given by the trial Court has preceded in complete departure to the principle of criminal administration of justice;
(b) That the eye-witnesses' account being full of contradictions and discrepancies, was not dependable and confidence-inspiring which was rightly discarded by the learned trial Court with cogent and convincing reasons;
(c) That the trial Court having the benefit of watching the demeanours of the witnesses and taking in consideration the material contradictions in their statements, has rightly come to the conclusion that their testimony was not trustworthy but on the contrary the Appellate Court through misappreciation of evidence while drawing wrong inference and raising presumptions in favour of prosecution, held the petitioner guilty of the charge.
6. ' Upon setting the law at motion the S.H.O. Of the concerned police station deputed Pardool Khan, S.-L, P.W.8 and handed him over the investigation of the case. The S.-I, having prepared the injury and inquest report of the deceased at Police Post Toru despatched the dead body through a constable to the mortuary for post-mortem examination. During the spot inspection, he secured blood-stained earth and 24 crime empties from three places and after preparing site plan recorded the statement of witnesses. The incriminating material collected by the Investigating Officer from the spot was sent by him to the concerned offices for expert opinion. The accused after the occurrence remained absconded for a considerable period, therefore, the Investigating Officer having obtained the warrants under section 204, Cr.P.C. Got them declared proclaimed offenders. Syed Mukhtar Ali Shah, Medical Officer, P.W.9 during the post-mortem examination of deceased traced the following injuries on his person:-- "(1) A fire-arm inlet wound about 1/4" x 1/4" in size on left side of face near mendable.
(2) A fire-arm exit wound about 1" x 1" in size on right side of neck.
(3) A fire-arm inlet wound about 1/4" x 1/4" in size on the middle of back about 1" on left side of vertebralcolimn.
(4) Two fire-arm inlet wounds each about 1/4" x 1/4" in size on the back of chest left side.
(5) Two fire-arm inlet wounds about 1/4" x 1/4" in size on the left scapular region.
(6) One fire-arm inlet wound about 1/4" x 1/4" in size on left aspect of left upper arm.
(7) A fire-arm exit wound 1/2" x 1-1/2" size on the lateral of left upper arm about 2" apart from the inlet wound No,6.
(8) A fire-arm exit wound 1-1/2" x 1-1/2" in size lateral aspect of right shoulder.
(9) A fire-arm.Exit wound size 1-1/2" x 1-1/2" in size on the front right shoulder.
(10) A fire-arm exit wound size 2" x 2" in size in the right arm pit region."
7. ' Inayatur Rehman complainant of the case and his son Imtiaz were examined as P.Ws.5 and 6 respectively as eye-witnesses of the occurrence. They have narrated the occurrence in detail consistent to the story of F.I.R. And corroborated each other on each material point. Inayatur Rehman P.W.5 has stated that on the fateful day at 4-45 p.m. When he in company of his sons Imtiaz and Mujahid deceased reached near Adda Toni, the accused namely Sher Alam, Israr who are real brothers and Abdur Rauf their brother-in-law armed with kalashnikovs while standing at Adda confronted with them and simultaneously opened firing and the deceased while sustaining injuries as a result of shots fired by Sher Alam expired at the spot. The motive as stated by the witness was that prior to the occurrence an altercation had taken place between the deceased and the accused. Muhammad Imtiaz P.W.6 claiming his presence at the spot with his father and deceased brother deposed in line to the statement of his father. The dead body was taken from the spot to mortuary by Hayat F.C. (P.W.1) and Gulzar Khan, S.-I. (P.W.2) recorded the F.I.R. (Exh.P.A).
8. Najib Khan (Rtd.) F.C. Was entrusted the warrants of arrest of the accused which were returned by him unexecuted and remained associated with the completion of process of proclamation of accused. The learned trial Judge having given much importance to the minor discrepancies and contradictions in the prosecution evidence, acquitted the accused. The main ground which prevailed with the trial Court for acquittal of the petitioner was that if the eye-witnesses, as per their claim, were present at the spot with deceased why as a result of extensive firing made by the accused they were not caused any damage. It is usual in our society that male members of the family go to bazar for making purchases for Aftari in the month of Ramzan and therefore the presence of eye-witnesses with deceased in the bazar to make purchases for Aftari being not unnatural would be free from any doubt. The inference drawn by the trial Court that since no damage was caused to the eyewitnesses, therefore, their presence was doubtful, was misguiding and artificial. Similarly the learned trial Judge having given much importance to the site plan, concluded that the sustaining of injuries by the deceased as stated by the eye-witnesses, was not possible, was also without any foundation. The site plan is not a substantive document to be used to contradict the ocular account and cannot be given preference over the direct evidence of eye- witnesses. We may observe that the minor discrepancies in the medical evidence relating to the seat of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse effect on the prosecution case. The Investigating Officer recovered 24 empties of kalashnikovs at three places from the spot and for want of firearm expert opinion the same could not be used against the accused as incriminating material but the recovery of crime empties from the three different places as shown in the site plan, would indicate that firing was made from three places which would be a strong supporting circumstance to the ocular account according to which all the three accused opened firing simultaneously and deceased sustained injuries as a result of shots fired by Sher Ahmed. The motive for the murder as stated was that a few days earlier, an altercation had taken place between the deceased and the petitioner and the matter was got compromised by the elders, therefore, the incident regarding the altercation must not be out of the knowledge of father of deceased. The defence despite lengthy cross-examination has not been able to bring on record any material suggesting any direct or indirect enmity or grudge of the eye-witnesses against the accused. The motive part of story is also supported by the fact that eye-witnesses despite being present at the spot were not caused any damage as neither they were target of the accused nor the accused had any grudge against them to make an attempt to cause any damage to them and, therefore, the motive set up by the prosecution would appear to be befitting in the given facts. The unexplained disappearance of the accused from their ordinary place of residence immediately after the occurrence knowingly that they were being charged for the murder of deceased, would tantamount to deliberate absconsion with guilty mind, therefore, it would be another circumstance to establish the culpability of the appellant and we are fully agreed with the opinion expressed by the High Court vis-a-vis the absconsion of the appellant.
9. ' We have given our anxious consideration to the main contention raised by the learned counsel for the appellant in support of this appeal that the prosecution case was doubtful for want of availability of independent corroboration to the ocular account of related witnesses. We may observe that relationship itself is no ground to discard and discredit the testimony of C eye- witnesses unless it is shown that they are partisan and interested witnesses. The eye-witnesses in the present case undoubtedly are related to the deceased but they have been found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration.
10. However, in the present case as discussed above, the ocular account is seeking ample support from the motive, the medical evidence and the attending circumstances.
11. ' The report of occurrence was lodged within one hour at the police station situated at a distance of about 7/8 kilometres wherein the appellant was named as main assailant who fired at the deceased with kalashnikov and the occurrence took place in the bright day light at the Adda within the sight of the natural witnesses. We having scrutinized the statement of eyewitnesses are fully satisfied that they are truthful and trustworthy and the conviction and sentence awarded to them can safely be sustained which do not call for any interference. The acquittal of co-accused of appellant in consequence to the compromise with the complainant party, would not affect the prosecution case on merits against the appellant.
12. The upshot of above discussion is that we uphold the conviction and sentence awarded to the appellant by the High Court and dismiss his appeal.