2016 P Cr (PLP)

ABDUL LATIF KHAN, J.

Impugned herein is the judgment dated 5.5.2011 passed by learned Additional District Judge/Izafi Zila Qazi, Matta, whereby accused/appellant Inayat Ullah, Muhammad Saeed and Liaqat Ali, involved in case FIR No. 358 dated 22.6.2006, under sections 302/324/34, P.P.C., registered at Police Station, Matta, District Swat, were convicted and sentenced as under:- (i) Inayat Ullah. To life imprisonment under section 302(b), P.P.C. and further directed to pay Rs. 2,00,000/ - (two lac) to the legal heirs of deceased under section 544-A, Cr.P.C. with benefit of section 382-B, Cr.P.C. (ii) Muhammad Saeed and Liaqat Ali. Under section 324, P.P.C. for the period already undergone along with payment of Rs.20,000/ - each to the complainant and eye-witnesses in equal share or in default thereof to suffer SI for three months.

2. Complainant, Sher Nawab, lodged a report to the local police in his house that on 22.6.2006 he along with his brother Khan Laiq was sitting on the roof of cattle place while Sarbaz Khan was collecting wheat crop in the field known as 'Kharum' at 08.30 hours, Gul Said, Kazim, Muhammad Hussain and Muhammad Said sons of Safdar duly armed suddenly appeared and started firing at them as a result of fire shot of Gul Said, his brother Khan Laiq was hit on different parts of his body and died on the spot while they escaped from the firing of remaining accused. On hearing the report of firing, accused Inayat Ullah and Liaqat Ali already present in the field 'Khurum' started firing at his father, Sarbaz Khan, and with fire shots of accused Inayat Ullah he was hit on different parts of his body, who also died on the spot. Motive behind the occurrence was dispute over landed property. The occurrence was stated to be witnessed by Mst. Saleha, Mst. Sarodana and Mst. Zakia and, as such, the above referred FIR was registered.

3. Dr. Hadayat Ullah (PW-12) conducted external examinations on the dead bodies of deceased and prepared their reports, Ex PW6/1 and Ex.PW6/2. Investigation of the case was entrusted to Sarfaraz Khan (PW-14), who inspected the spot, recovered blood stained earth and four empties of 7.62 bore each from the places of accused Gul Said and Inayat Ullah, six spent bullets and took the same vide memo Ex.PW14/1 to Ex.PW14/5. He also took into possession blood stained garments of the deceased and also sent the blood stained articles to the FSL. Since the accused were avoiding their lawful arrest, therefore, warrants under section 204, Cr.P.C. and notices under section 87, Cr.P.C. were obtained against them. After completion of investigation, complete challan under section 512, Cr.P.C. was submitted against the accused. Learned trial Court after recording statements of PWs under section 512, Cr.P.C. declared all the accused as proclaimed offenders vide order dated 26.2.2007.

4. Later on, accused Inayat Ullah, Muhammad Saeed and Liaqat Ali were arrested in Saudi Arab and supplementary challan against them was submitted before the Court. Learned Additional Sessions Judge, Matta, after conclusion of the trial, convicted and sentenced the appellant as stated above. He filed instant Criminal Appeal No. 292/2011 against his conviction while Mst. Swaliha Bibi filed Criminal Appeal No. 12/2011 against the acquittal of accused Muhammad Saeed and Liaqat Ali under section 302, P.P.C. She also filed criminal revision No.07/2011 for the enhancement of sentence. Since both the Criminal Appeals and a Criminal Revision have been filed against one and same judgment, therefore, we intend to dispose of the same through this single judgment.

4. Learned counsel for the appellant/convict contended that the judgment of learned trial Court is against law and facts which is the result of mis-appreciation of evidence on record. He contended that report has been lodged in his house by the complainant and that too, after wo hours of the occurrence but there is no explanation for such delay, therefore, question of consultation with other family members for false involvement of appellant cannot be ruled out, which is fatal to the prosecution case. He added that the occurrence was unseen and the eye-witnesses have given evidence in favour of the prosecution because of their close relationship with the deceased. He argued that there are contradictions in the statements of PWs, therefore the story advanced by the prosecution has not been established and the same could not be believed. He argued that the prosecution has miserably failed to bring home the charge against the appellant-convict beyond reasonable shadow of doubt and the learned trial court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the appellant be acquitted of the charge.

5. As against that, learned A.A.G. appearing on behalf of the State and counsel for complainant contended that the appellant, Inayat Ullah, and his co-accused, Muhammad Saeed and Liaqat, are directly charged in the FIR for the murder of Khan Laiq and Sarbaz, which is supported by the testimony of complainant, PW-9, eye-witnesses, namely, Mst. Sarodana, PW-10, Mst. Zakia, PW-11, Dr. Hadayat Ullah, PW-12, Sarfaraz Khan, Investigating Officer, PW-14, coupled with blood stained earth, garments and empties of 7.62 bore from the spot, Klashnikov on the pointation of accused, motive and longstanding abscondance of accused. They added that the prosecution witnesses were consistent on material particulars, therefore, the learned trial court has rightly convicted the appellant Inayat Ullah, however, learned counsel for complainant criticized the judgment to,' the extent of quantum of sentence and contended that the appellant and his co-accused, namely, Liaqat and Muhammad Saeed have committed brutal murder of the two innocent persons and the respondents Nos.1 and 2 in Criminal Appeal No.12/2011 have shared their common intention in the commission of offence with the principal accused, therefore, they are not entitled for any leniency.

6. We have considered arguments of learned counsel for parties and have gone through record of the case through their able assistance.

7. The record reveals that complainant, Sher Nawab as PW-9, in his statement before the trial Court has given detailed account of incident. He has confirmed the contents of FIR Ex. PA. No doubt, there is two hours' delay in lodging of the report but the same is not fatal to the prosecution case as the occurrence took place in far-flung area and in Malakand Division, people do avoid to conduct postmortem examination of their relatives, therefore, they did not make efforts to shift the dead bodies to the hospital. Even otherwise, in each case delay in lodging of FIR is not fatal to the prosecution case and can be ignored keeping in view the peculiar circumstances of each case if the evidence available on record appears to be trustworthy and confidence inspiring. Wisdom is sought from the case Muhammad Mushtaq v. The State (PLD 2001 SC 107) wherein the apex court has observed that:- "Even otherwise, delay in lodging of FIR under section 154, Cr.P.C. is never considered sufficient to disbelieve the prosecution case because such situation put the Court on notice to undertake close scrutiny of the incriminating evidence available on record to avoid false involvement of the accused and if the evidence recorded in the case appears to be trustworthy and convincing then delay in lodging of FIR can be ignored keeping in view the peculiar circumstances of each case."

8. The statement of complainant was fully corroborated by PW-10, Mst. Sarodana, and PW-11, Mst. Zakia, the eye-witnesses, who furnished the details of unfortunate happening. Presence of complainant and eye-witness on the spot cannot by any stretch of imagination be doubted as they are inmates of the house. Complainant, PW-9, and PW-11 and PW-12 have given straightforward testimony and they remained unshaken in spite of lengthy and searching cross-examination and, as such, their un impeached versions are apparently truthful and confidence inspiring. The contention of learned counsel that PWs were not present on the spot as they did not report the matter and was waiting till the arrival of police to their house is misplaced, for the reasons that Shah Mumtaz Khan, PW-13, who recorded report of the complainant, stated in his cross-examination that on receipt of information regarding the occurrence, he proceeded to the spot and according to custom, of the locality, he deemed appropriate to summon the doctor to the house of complainant instead of shifting the dead bodies from the house and as such, the medical officer examined the dead bodies on the spot.

9. It is day light occurrence and appellant and his co-accused were already, known to PWs, therefore, there is no question of misidentification. The case of prosecution was further supported by the medical report conducted by Dr. Hadayat Ullah, PW-12. According to his statement and medical reports, injuries on the persons of deceased were the result of fire arm. The story of prosecution has further been corroborated by recovery of empties of 7.62 bore and blood stained earth from the place of occurrence and blood stained garments of deceased.

10. Learned counsel for the appellant has attempted to point out certain minor discrepancies in the prosecution case suggesting that the occurrence has not taken place in the manner as narrated by the prosecution but on perusal of the statements of complainant and PW-10 and PW-11, eye-witness, medical evidence and site plan would reveal that these are not in serious conflict. Though, there are minor discrepancies or variation but in our opinion does not have any material significance or bearing on merits of the case.

11. The eye-witnesses in the case are, no doubt, related to the deceased but their testimony cannot be discarded mere on the ground of their relationship with the deceased as they are natural and truthful witnesses.

12. Another important circumstance, which is an immense importance, is the absconsion of appellant. The record reveals that he remained fugitive from law for about four years but in this regard he failed to explain his position. Though, absconsion by itself is not sufficient to convict an accused person but it is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case and where the accused person remained fugitive from justice for a very long time without any plausible and reasonable explanation, his conduct after the occurrence is indicative of his guilt when considered in conjunction with the ocular and circumstantial evidence. Wisdom is, sought from the case of Mst. Roheeda v. Khan Bahadar (1992 SCMR 1036).

13. As far as case of accused/respondents Muhammad Saeed and Liaqat Ali is concerned, they are charged for ineffective firing and specific role of firing has been attributed to appellant, Inayat Ullah, as well as his absconding accused, namely, Gul Said, therefore, the conviction and sentenced awarded to them by the trial Court also are based on correct appreciation of evidence on record.

14. For the aforementioned reasons, we are fully satisfied that the prosecution has succeeded in establishing the guilt of the appellant. The judgment of conviction and sentence passed against the appellant, Inayat Ullah and accused/respondents, Liaqat Ali and Muhammad Ali are based on correct appreciation of evidence on record and there is nothing on record to indicate that the judgment is based on any error of law or the same is different to well-established principles of judicial approach or same can in any manner be characterized as unjustified. Therefore, we find no force in the appeals as well criminal revision for enhancement of sentence and, as such, the same are hereby dismissed. HBT/410/P Appeal dismissed.