2003 PLP 1479 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner Mukhtiar seeks leave to, appeal against the judgment, dated 18-9-2002 passed by a learned Division Bench of Peshawar High Court, Peshawar, whereby Criminal Appeal No. 126 of 2001, filed by him was dismissed.

2. Facts leading to the filing of the instant petition are that on 4-11-1998 at 12-15 p.m. complainant Latif Khan, his brother Dolat Khan and cousin Afzal Khan while returning from Bazar to their village, when reached at thoroughfare of Sarwar Colony, Takht Bhai, there emerged petitioner Mukhtiar, duly armed with Kalashnikov fired at Dolat Khan, his brother, who sustained injuries and succumbed at the spot.

3. The motive.behind the occurrence was said to be a dispute over landed property-in between the deceased and the petitioner.

4. P.W.9 Saeed Gul Khan, A.S.-I., recorded the F.I.R. at Police Station, Takht Bhai at the behest of complainant and started investigation. From the place of occurrence, he collected blood-stained earth, three empties of 7.62 bore and three spent bullets.

5. P.W.1 Dr. Aziz Muhammad who conducted autopsy on the deceased Dolat Khan found the following injuries on his person:-- (i) Fire-arrni entrance wound on left side of neck size 1/3" x 1/3": (ii) Exit wound on right side chest near clavical siz-1 "x 1". (iii) Fire-arm entrance- wound on right side of abdomen lumber region size 1/3".x 1/3". (iv) Exit wound on left side of buttock near iliac crest 1 " x 1" . (v) Fire-arm entrance wound on back of chest left side 1/3" x 1/3". (vi) Exit wound on lateral side of chest right side at mid clavicular line, siz 1" x 1". (vii) Graze wounds on both hands, fingers noted, each having size 1" x ". On internal examination, he also found walls, peritoneum, esophagus, small and large intestines and right kidney injured and opined that the cause of death was the result , of number of injuries on vital organs i.e. heart, lungs and major blood vessels.

6. Immediately after commission of offence, the petitioner absconded and his warrants of arrest and proclamation notices were issued. Being not arrested, a charge-sheet was submitted against him under section 512, Cr.P.C. It was on 20-2-2000, the petitioner was arrested and a supplementary challan was submitted against him before the trial Court.

7. The prosecution in order to establish its case, examined 11 witnesses in all.

8. The petitioner in his statement recorded under section 342, Cr.P.C. denied the case of prosecution and claimed innocence. As regards his absconcion, he explained that the moment he came to know of the charges against him, he surrendered before the police. He also took the plea that on the day of occurrence, the deceased had gone to Tehsil premises for attestation of bail bond. The copy of which was produced by him. He, however, did not examine himself on oath under section 340(2), Cr.P.C. but examined Ismail Khan and Zabta Khan in his defence.

9. On conclusion of trial, the petitioner was found .guilty of the charges and was convicted and sentenced under section 302(b), P.P.C. to undergo rigorous imprisonment for 25 years and was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased or in default whereof to suffer simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was extended to him towards the computation of his sentence.

10. We have heard Mr. Anwar Sipra, learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

11. Mr. Anwar Sipra, learned Advocate Supreme Court for the petitioner, mainly contended that the ocular account rests on highly interested and inimical evidence. To substantiate its case, the prosecution has produced the evidence of complainant, real brother of the deceased only, whereas P.W. Afzal Khan, his cousin did not support the case of prosecution and was declared hostile. According to him, there is glaring inconsistency between the ocular and medical evidence. Irrespective of above, the alleged Kalashnikov, said to have been used by the petitioner in the commission of offence, has not been recovered from the possession of the petitioner, as such, he deserves to be acquitted.

12. It is by now a well-settled proposition of law that mere relationship of the witnesses with the deceased is not enough to discard his testimony particularly when no animosity is attributed to him. Both Courts below while taking into consideration the above aspect of the matter have found the ocular account furnished by complainant Latif Khan as convincing, believable, truthful and inspiring confidence. It is also established that the said ocular account has been corroborated in material particulars by the medical evidence, recovery from the spot and absconscion of the-petitioner. This Court in the case of Abdul Ghafoor v. The State (2000 SCMR 919), while dealing with the similar aspect of the matter held that the evidence furnished by an interested witness cannot be discarded merely on the ground of relationship with the victim or deceased. This being a broad daylight incident, the question of mistaken identity is eliminated altogether. As regards motive, that too stands proved on the record. Irrespective of the complainant, even P.W. Afzal Khan, in his cross-examination, has candidly admitted in unequivocal terms that there was dispute between the petitioner, deceased and the complainant over the landed property. During the trial in absentia, he had also fully implicated the petitioner with the commission of the offence and also admitted the contents of the F.I.R. to be true when read over to him and to the complainant by the police after its registration. Thus in our view, the prosecution has fully established its case beyond any shadow of doubt and the petitioner was rightly convicted and sentenced by the trial Court.

13. In the light of what has been discussed above, we do not find any infirmity whatsoever in the impugned judgment. The conviction recoded against the petitioner, in, the circumstances of the case, is unexceptionable. No case is made out for interference in the concurrent findings of the Courts below. The petition being devoid. of merit is dismissed and leave to appeal refused. M.B.A./M-864/S Petition dismissed.