1996 PLP 1111 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

Criminal Petition No.75 of 1994 has been filed by petitioner Abdul Akbar alias Pakh challenging his conviction and sentence by the Sessions Judge, Karak, for having committed the murder of Mir Ajab Khan, while Criminal Petition No.18-P of 1994 is filed by Mst. Nawab Jana widow of deceased Mir Ajab Khan for enhancement of the sentence awarded to petitioner Abdul Akbar alias Pakh. According to the prosecution, on 22-5-1989 at about 7-30 a.m. complainant Mst. Nawab Jana, her husband Mir Ajab Khan and her husband's nephew P.W. Muhammad Mustafa were present at a place near their house for digging out earth and sending the same on donkey backs to their house. Complainant Mst. Nawab Jana and P.W. Muhammad Mustafa resumed loading with earth the donkey, which were being led to their house by small children, while Ajab Khan sat on a "Banns", after taking tea the kit of which was being carried back to the house by Bibi Gul Naz daughter of the complainant. In the meantime, petitioner Abdul Akbar came there, fired fire-arm at Mir Ajab Khan and then took to his heels towards his house. Mir Ajab Khan received the fire arm shot and fell down on the ground. On the cries raised by the complainant party, Ramzan Khial Bajan and Kashmir Jan started firing at houses of the complainant party. With help of the Mohalla people injured Mir Ajab Khan was shifted by a Datsun vehicle to a local hospital where he succumbed to his injuries. Such F.I.R. No.157/89 was lodged by Mst. Nawab Jana on the same day at 10-20 a.m. at Police Station, Karak. She named Muhammad Mustafa to be eye-witness besides her. Motive for the offence was, that Muhammad Jan father of co-accused Kashmir Jan was murdered allegedly by relatives of the complainant. There were also civil cases between the parties. Delay in lodging of the report was explained to be non-availability of transport. After due investigation the case was put in Court against petitioner Abdui Akbar and co- accused Ramzan, Kashmir Jan and Khial Bajan with petitioner Abdul Akbar absconding. Co-accused Ramzan, Kashmir Jan and Khial Bajan were tried and then acquitted. Thereafter, petitioner Abdul Akbar was arrested on 7-10-1991 and he was sent up in the trial Court with supplementary challan. At the conclusion of the trial, petitioner Abdul Akbar was convicted for the offence punishable under section 302, P.P.C. and was sentenced to suffer life imprisonment and to pay a fine of Rs.20,000 or in default of payment of fine to suffer S.I. for six months. The petitioner was also directed to pay a compensation of Rs.20,000 to the legal heirs of the deceased or to undergo further S.I, for six months. Under the same judgment the petitioner was acquitted of the charge under section 307/34, P.P.C. The petitioner challenged his conviction and sentence in the Peshawar High Court where complainant Mst. Nawab Jana filed revision petition for enhancement of the sentence. Under the impugned judgment dated 28-3-1994, a learned Division Bench of the Peshawar High Court maintained conviction and sentence of the petitioner and dismissed his appeal and also dismissed the revision petition for enhancemen of the sentence. Hence these Criminal Petitions for Leave to Appeal. Sardar Muhammad Ishaq Khan, learned counsel for petitioner Abdul Akbar, argued that injured Mir Ajab Khan was taken by P.W. Muhammad Mustafa firstly to the Police Station where the S.H.O. without recording the F.I.R. directed the injured to be taken to the hospital. It was next argued that there was conflict between the medical evidence and the evidence of Mst: Nawab Jana about the seat of injury on her husband. It was also argued that there were bushes and trees at the place of incident and the possibility of the deceased having been fired at by somebody from the bushes, cannot be ruled out. Lastly, it was argued that there was no direct motive and there was no conscious abscondence by the petitioner, who was in Iran. The evidence has been appraised by the trial Court as well as by the Appellate Court. It is correct that P.W. Muhammad Mustafa was not believed by 'the trial Court on a ground which is preposterous vii., that his statement under section 164, Cr.P.C. had been got recorded. The High Court has rightly relied on the evidence of P.W. Muhammad Mustafa, who is an eye-witness even according to the F.I.R. P.W. Muhammad Mustafa and complainant Msc. Nawab Jana had no reason to falsely implicate petitioner Abdul Akbar in a murder case. There is also evidence about abscondence of the petitioner. The incident took place on 22-5-1989 while petitioner Abdul Akbar was arrested on 7-10-1991. Awal Khan P.W.11, who investigated the case as S. H. O. Karak, deposed that he arrested Ramzan and Kashmir Jan on 29-5-1989 and Khial Bajan on 30-5-1989 but petitioner Abdul Akbar was not available and on his application a search warrant was issued and notice under section 87, Cr.P.C. was issued against him. Had the petitioner gone to Iran as stated on his behalf by his counsel, he would have produced such evidence, in the shape of relevant entries on his passport. We are not impressed by the so-called contradiction between the medical evidence and the evidence of Mst. Nawab Jana. No specific question was put to the Medical Officer in respect of the so-called contradiction. Mst. Nawab Jana P.W.9 deposed that at the relevant time her husband sat on a "Banna" facing west, when the assailant came there and fired at him. In her cross-examination Mst. Nawab Jana P.W.9 stated that she alerted the deceased but the moment he turned his face towards the accused, he was fired at. It was not, suggested to the eye-witness during the cross-examination if deceased Mir Ajab Khan was fired at by anybody other than petitioner Abdul Akbar. The so- called contradiction has not put any dent in the prosecution evidence. The ocular evidence stands corroborated by the evidence of abscondence. One cannot agree with the learned counsel for the petitioner, that Mir Ajab Khan was fired at by some unknown person from the bushes and trees when S.H.O. Awal Khan P.W.11 made it clear that there were some trees and bushes near the spot but no tree or bush was there at the place where the deceased and the witnesses were present. In our view, the High Court has rightly believed the prosecution evidence, which was sufficient for conviction of the petitioner. In our opinion the sentence awarded meet the ends of justice and no case is made out for enhancement of the sentence. Consequently, both these petitions are dismissed. N.H.Q./A-1222/S Leave refused.