' IJAZ-UL-HASSAN KHAN, J.---Appellants Mir Wali son of Ghulam Jan and Aflatoon son of Abdullah Jan, both residents of Tajori, Tehsil and District Lakki Marwat were tried for the charges under sections 302/324/34, P.P.C. By learned Additional Sessions Judge, Lakki Marwat for committing murder of Siraj-udDin and firing ineffectively at Aziz-ud-Din, son of the deceased. The learned Trial Judge, vide judgment, dated 22-11-2003, convicted them under section 302(b), P.P.C. And sentenced to suffer death and were ordered to pay compensation amount of Rs.50,000 each to legal heirs of the deceased in accordance with the provisions of section 544-A, Cr.P.C. Or in default of payment of compensation, to undergo further SI for six months each. The appellants were also convicted under sections 324/34, P.P.C. And sentenced to undergo seven years' R.I. Each and to pay fine of Rs.10,000 each or in default, to undergo further three months SI. The appellants have questioned their convictions and (sic) filed Criminal Revision No.22 of 2003. All the three matters are being disposed of through this consolidated judgment.
2. The crime in question is alleged to have taken place on 23-6-2001 at 0950 hours in the medicine shop of Siraj-ud-Din in Tajori Bazar, Lakki Marwat. The victim was immediately rushed to Rural Health Centre, Tajori where he made the report at 1010 hours before Sardar Nawaz (P.W.7), S.11.0., Police Station, Tajori.
3. The prosecution story as spelt out from the F.I.R. Is, that on the day of occurrence, Siraj-ud-Din and his son Azizud-Din were present in their medicine shop when at about 0950 hours their co- villagers Aflatoon and Mir Wali who were heroin addicts came to the shop and demanded money from them to which they refused. The accused took out .12 bore pistols. Mir Wali fired at victim Siraj- ud-Din with which he was hit and fell on the ground. Aflatoon fired at Aziz-ud-Din which went amiss and Aziz-ud-Din escaped unhurt. After the occurrence, the accused bolted away.
4. S.H.O. Sardar Nawaz (P.W.7), after recording the report in the shape of Murasila (Exh.P.W.7/1) sent the same to Police Station, Tajori where it was incorporated in F.I.R. (Exh. PA) by IHC Mamoor Khan (P.W.1). He prepared injury sheet (Exh.P.W.7/2) of the victim and proceeded to the spot, prepared site-plan (Exh.P.W.7/4) at the pointation of Aziz-udDin, took into possession blood-stained earth, blood-stained glass pieces of bottles, cardboard boxes and recovered six pellets from the Almirah stuck therein. He also took into possession shirt of the deceased and a phial containing six pellets of .12 bore sent by the doctor through constable Abdul Qayyum and sealed the 'same in parcel.
Blood-stained earth and shirt were sent to F.S.L. Peshawar for opinion. He placed on record, report of the Serologist (Exh.P.W.7/7). After completing necessary formalities, he suhtnitted complete challan against the accused in Court. examined under section 342, Cr.P.C. And claimed false implication and professed innocence.
7. The trial culminated into conviction of the appellants as mentioned above in the opening paragraph of this judgment.
8. Mr. Mirza Ali Khan, Advocate, learned counsel for the appellants submitted that the prosecution has not been able to prove its case against the appellants and for that matter, the impugned judgment of the learned trial Judge is erroneous and is the outcome of misreading and non- reading of the evidence. He contended that the learned trial Judge has taken one sided view of the evidence in disregard of principles of law and justice. Such type of approach to the case has taken him to a patently wrong conclusion. He also urged that the statement of Aziz-ud-Din P.W. Could not have been relied upon being an interested witness without corroboration which is lacking in this case. Additionally, he urged that medical evidence is in conflict with the ocular account inasmuch as the injury on the back could not have been received by the victim in case he was facing the assailant. Concluding the arguments, it was alleged that before recording an order of conviction, all the facts and circumstances of the case must be taken into consideration and the golden principle of the criminal justice must be borne in mind that in case of murder, the onus of proof always lies upon the shoulder of the prosecution that the case must be proved against the accused beyond any reasonable doubt and when the Court is in doubt as to whether the accused has committed an offence, it should acquit him rather to sentence him. He added that this aspect of the case was totally ignored by the learned trial Judge while recording conviction.
9. While opposing the aforesaid submissions of learned counsel for the appellants and supporting the impugned conviction and sentence recorded by the learned trial Judge whole heartedly, Mr. Salimullah Khan Ranazai, Advocate for the State assisted by Mr. Sultan Shehryar Khan Marwat, Advocate for the complainant contended that the appellants have been rightly awarded impugned conviction and sentence; that the prosecution has successfully proved the guilt of the appellants; that the impugned judgment is based on proper appreciation of evidence brought on record, which is further corroborated by medical evidence, motive, recoveries and prolonged abscondence of the appellants and conviction in a murder case can be based on evidence of a solitary, witness if found truthful and natural and not interested. Concluding the arguments, it was added that P.W. Aziz-ud-Din, sole eye-witness has fully explained his presence at the time and venue of occurrence. He has emerged from a lengthy and protracted cross-examination as truthful witness and nothing significant %las elicited from him which would in any way detract from the massive weight of his testimony.
10. We have heard at length the arguments of learned counsel for the parties in the light of material on file.
11. Though the ocular testimony found truthful and confidence-inspiring is itself sufficient to sustain the conviction on the capital charge, yet in the instant case the testimony of P.W. Aziz-ud-Din is further corroborated by the medical evidence on record, recoveries, motive and prolonged abscondence of the appellants.
12. No doubt it is a case of solitary witness but the testimony of a solitary itself is not a demerit or disqualification as can call for its repudiation. Conviction can be based on the solitary eye-witness if it is confidence-inspiring and otherwise it rings true. The argument that the eye-witness bein the son of the deceased is highly interested and cannot be relied upon, is not tenable both legally and logically in the absence of any defect in its intrinsic wobative worth and in the absence of any Motive on his part to falsely implicate the appellavi.s. It is the quality of the evidence which'is to be seen and not the quantity.
13. Having regard to the facts and circumstances of the case, we are satisfied that Aziz-ud-Din (P.W.6) was present with the deceased at the time of incident. The witness has deposed in unequivocal terms about the receiving of injuries by the deceased at the hands of the appellant Mir Wali. His presence at the place of occurrence cannot be doubted because it was natural for him to be present with the deceased in the medicine shop. The occurrence has taken place in broad-daylight and it is hard to believe that he would let the real culprit go scot free and instead falsely implicate the appellants in the incident with whom he had no previous enmity nor any such enmity has been suggested. Mere relationship of this witness with the deceased would not make him interested witness, as he has no motive to falsely implicate the appellant in the commission of offence. In the judgment reported in 2000 SCM R 1784, it was held that the eye-witness who has no against the accused cannot be termed as interested witness. It would be beneficial to reproduce the relevant observations herein below:-- "S.
302. Re-appraisal of evidence.
' Interested witness Concept. 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. Testimony of interested witness. Scope. Mere friendship or relationship with the deceased does not make a witness an interested one and testimony of such a witness, who otherwise seems to be a truthful witness, cannot be ejected on such ground. Friendship or relationship with the deceased is not sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
' The recovery of blood-stained earth and pellets from inside the shop of the deceased fully establishes the venue of occurrence and corroborates the version of P.W. Azizud-Din. It is also apparent from the record that matter was reported to the police without wastage of time nominating the appellant with a specific role. The promptness in lodging the F.I.R. Is yet another factor to strengthen the prosecution case. An attempt was made to show that the statement of the deceased treated as dying declaration was prompted and dying declaration is not worthy of credence at all. The submission is devoid of force. Again, the mere fact that deceased was literate up to 9th class but he put thumb-impression on his statement instead of signing the same, is not fatal and does not create doubt in prosecution case. Learned counsel for the appellants next contended that the occurrence had taken place in the Bazar but no person from the Bazar was produced with a view to withhold independent witness, therefore, the testimony of related witness would not be alone sufficient to sustain conviction. It is common in our society that except the close relatives, none involves himself in such matters taking the risk of enmity with the accused.
This is understandable that the persons present at the spot must have scattered at the happening of the incident and therefore, no person from the gathering could be willing to become a witness against the accused.
14. Much stress has been laid down by learned counsel for the appellants that the medical evidence runs contrary to ocular version inasmuch as the injury on the back could not have been received by the victim in case he was facing the assailant. The argument is too naive to be considered. A living organism under attack is not a fixed target and has to react. Forceful impact of high velocity bullet causes involuntary and convulsive movements of the body.
15. Another important circumstances which has immense corroborative value is the absconsion of the appellants. It may be noticed here that appellant Mir Wali was arrested on 14-1-2002 and appellant Aflatoon was arrested on 4-7-2002. This piece of evidence was specifically put to both the appellants and they could not offer any tenable explanation whatsoever. When the abscondence is proved on record and if no explanation which appeals to reason is put forward by the accused, then this circumstance coupled with the evidence on record weighs rather heavily against the accused. Mst. Roheeda v. Khan Bahadur and another (1992 SCM R 1036) and Amanullah Khan and 3 others v. The State (2002 PCr.LJ 1934 Lahore).
16. We have also given our anxious consideration to the question of sentence to be passed against Mir Wali appellant and in this context, in the peculiar circumstances of this case, we feel it unsafe to uphold the sentence of death awarded to the appellant by learned trial Court. It appears to us that the occurrence was not pre-planned and pre-concerted. It was the outcome of sudden affair. The appellant Mir Wali fired only one shot and not repeat the same though the victim was at his mercy keeping in view all these factors into consideration, we substitute the sentence of death passed against appellant Mir Wali by the trial Court with a sentence of imprisonment for life with fine of Rs.50,000 or in default to suffer six months S.I. The fine, on realization, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. His conviction and sentence recorded under section 324, P.P.C. Are set aside. Benefit of section 382-B, Cr.P.C. Shall also be available to him.
17. So far as appellant Aflatoon is concerned, his active participation and sharing common intention in the murder of Siraj-ud-Din is not discernible from the material on record. He is charged for firing ineffectively at P.W. Aziz-ud-Din. The sentence of death awarded to him is unwarranted in the given situation. His conviction and sentence recorded under section 302(b), P.P.C. Is set aside.
However, the conviction and sentence passed against him under sections 324/34, P.P.C. For firing ineffectively at P.W. Aziz-ud-Din is maintained and amount of fine is enhanced from Rs.10,000 to Rs.25,000 or in default whereof to suffer six months S.I. He is also extended benefit of section 382-B, Cr.P.C. Criminal Appeal No.117 of 2003 and Criminal Revision No.22 of 2003 stand disposed of accordingly.
18. Murder Reference of both the appellants is answered in negative.
19. Above are the detailed reasons for our short order dated 2-4-2004.