2010 PLP 1531 (YLR)

ATTAULLAH KHAN, J.--Through this single judgment, we propose to dispose of the following matters:-- (a) Criminal Appeal No.95 of 2005 filed by Roman Ali appellant against his conviction and sentence of life imprisonment, (b) Criminal Revision No.33 of 2005 filed by Mr. Gul Banozada for enhancement of sentence awarded to Roman Ali from imprisonment for life to death, and Criminal Appeal No.89 of 2005 filed by Mst. Gul Banozada against acquittal of accused-respondent Mustafa.

2. All the three matters relate to one and the same judgment dated 29-6-2005 passed by learned Additional Sessions Judge-IV, Bannu vide which the learned trial Judge convicted accused-appellant Roman Ali and sentenced him to imprisonment for life and payment of compensation of Rs.1,00,000 to the legal heirs of the deceased. Vide same judgment, the learned trial Judge acquitted accused-respondent Mustafa from the charges under sections 302/34, P.P.C.

3. The brief facts are that complainant Mst. Gul Banozada reported in Civil Hospital, Bannu that on 18-6-2003 she sent her son Mehmood Khan for purchase of vegetables from Adda Mir Abbas. She was waiting for his arrival in front of her house when in the meanwhile at 0630 hours, the said Mehmood Khan reached there on bicycle. At that time, accused Mustafa and Roman Ali, who were her co-villagers, emerged there along with 20 shots rifles (M-16) and opened firing with which Mehmood Khan was hit and fell down. He was taken to the hospital by the complainant in injured condition but on reaching the hospital, he died. Motive disclosed is that the accused wanted to have illicit relations with the deceased but he was not ready.

4. It is to be noted that earlier accused-respondent Mustafa was convicted and sentenced under sections 302/34, P.P.C. to imprisonment for life and payment of compensation. This conviction was challenged before this Court through an appeal which was accepted, conviction and sentence were set aside and the case was remanded back to the trial Court with the directions to decide the same afresh after examination of some defence witnesses in support of plea of alibi.

5. In the meanwhile, accused-appellant Roman Ali was arrested. After completion of investigation, supplementary Challan was submitted in the trial Court and he was put to trial. Both the accused pleaded not guilty and claimed trial. The prosecution examined ten witnesses and closed the evidence. Statements of accused were also recorded under section 342, Cr.P.C. Statement of acquitted accused Mustafa was also recorded under section 340(2), Cr.P.C. He also produced five other witnesses in his defence while accused-appellant Roman Ali did not wish to appear on Oath or to produce defence evidence. After hearing arguments, the impugned judgment referred to above was passed.

6. First argument of learned counsel for the convict-appellant is that the entire prosecution case is based on the statement of sole eye-witness namely Mst. Gul Banozada who is mother of the deceased and being closely related, her evidence is not reliable. It needed corroboration but her testimony is not corroborated reasonably. His further argument is that the eye-witness has stated in her statement recorded as P.W.9 that blood was oozing from the injuries of the deceased and her clothes and Burqua were smeared with blood but according to learned counsel, these clothes have not been taken into possession by the police. This fact has made the prosecution case doubtful, the learned counsel submitted. He has also argued that the shopkeeper from whom the deceased had purchased vegetables has not been examined. He further argued that both the accused are brothers and therefore, it is not possible for them to have common lust for sodomy. He further argued that the F.S.L. report shows the use of one weapon while two accused are charged.

7. As against this, the stand of learned counsel for the complainant is that the mother of the deceased is a natural witness and the defence has failed to establish any ill-will on her part, therefore, her evidence is to be believed. He further contended that there is no need of examination of any shopkeeper from whom the vegetables were purchased by the deceased because it is ancillary matter and need not be proved. He further contended that the convict-appellant remained absconder for eleven months and this abscondence may be treated as a circumstance against him. He further submitted that it is not a case of double version on the basis of raising plea of alibi on the part of acquitted accused-respondent Mustafa because the plea of alibi remains mere allegation and it is not a version.

8. Arguments heard and record perused in the light of which, our discussion is as under.

9. We would first take the argument in respect of ocular evidence. In this case, the ocular evidence is consisting of the statement of Mst. Gul Banozada (P.W.9). It is true that the said lady is mother of the deceased. We have to examine whether this close relationship would damage the prosecution case or not. It is on record that Mst. Gul Banozada is the only eye-witness present on the spot at the time of occurrence. She is near relation of the deceased and therefore, her statement is to be considered with due care and caution. Normally, relationship is no disqualification unless motive is proved on the part of complainant for false implication. It is to be seen whether the said P.W. is inimical towards the accused and motivated to falsely implicate the accused. If the evidence of sole related witness is found reliable and probable, then it would be sufficient for conviction. Reference may be made to PLD 2001 SC 112 and 2006 SCMR

919. Coming to the details of statement of P.W.9, one would find that it is in consonance with the prosecution case particularly corroborating the contents of the F.I.R. Whatever details are given in the F.I.R., have been confirmed by the lady witness in her statement before the trial Court. The perusal of her cross-examination would lead us to the conclusion that nothing about her motive for false implication of the accused is established. She herself reported the matter. She shifted her son in injured condition to the hospital. There is nothing in her cross-examination to suggest her absence. Thus, the defence has failed to point out any motive for false implication by the sole eye-witness. Moreover, this ocular evidence is duly corroborated by other pieces of circumstantial evidence which include medical report and recovery of empties.

10. The settled principle in criminal cases is that it is the quality which is counted and not the quantity. Only the testimony of one witness, if he is truthful, is enough for recording conviction. It is also to be pointed out that there is no discrepancy in the statement of the sole eye-witness. The discrepancies pointed out by learned counsel for the convict-appellant are of minor nature and it would not affect the prosecution case because the eye-witness is a pardanashin lady and illiterate.

11. In spite of lengthy cross-examination, no direct or indirect enmity or grudge on the part of eye-witness against the accused has been proved. In this connection, we rely upon 2003 SCMR

522. The observation recorded in the said judgment is reproduced below: "The defence despite lengthy cross-examination has not been able to prove on record any material suggesting any direct or indirect enmity or grudge of the eye-witness against the accused." It is further held as under: "We may observe that relationship itself is no ground to discard and discredit the testimony of eye-witness 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."

12. The wisdom in the above dictum of the apex Court carries weight and the principle laid down therein may very safely be applied to this case because in the case?in-hand, the lady eye-witness has given her straight forward deposition in the trial Court. Her statement was found truthful and there is nothing on record against her that she is motivated to falsely implicate the accused. So, in our opinion, the statement of eye-witness in this case is trustworthy and has been rightly believed.

13. As far as he submission of learned counsel for the convict-appellant that shopkeeper from whom vegetable were purchased by the deceased was not produced is concerned, it is of no avail because the prosecution is not bound to produce each and every witness. He was not a necessary witness. The matter in issue in this case is not the purchase of vegetables. This Court is only concerned with the murder of the deceased at the hands of the accused. It is ancillary matter and could be ignored.

14. It was also argued that both the accused were brothers and it was not possible for them to join hands for commission of sodomy. It is again, not an issue in this case because their joining hands was for the purpose of murder of the deceased and not sodomy. Sodomy has been alleged as motive by the prosecution and not against the accused in the occurrence. So, this submission is altogether not related with the prosecution case.

15. The F.S.L. report relied upon by the defence is available on file as Exh.PK. It discloses that three crime empties were fired from one and the same bore weapon i.e. 223(M.16) bore weapon. This opinion could not matter in this case. The reason is that both the accused were stated to be in possession of 20 shots rifles. So, it would not adversely affect the case of prosecution. Moreover, the F.S.L. report would lose its significance because ocular evidence is available which has supported the case against the accused-appellant and in this way, even no corroboration is needed. The medical report also corroborated the eye version of the complainant (P.W.9).

16. The accused-appellant also remained absconder for eleven months. No plausible explanation has been given for his abscondence. It is true that abscondence alone may not be taken into consideration against the accused but can be considered with other circumstances and ocular evidence. The ocular evidence and other circumstances prove the case and his abscondence is an added circumstance to be taken against him.

17. Now coming to appeal filed by complainant against acquittal of Mustafa accused-respondent, reference may again be given to the evidence and impugned judgment vide which the acquittal of accused-respondent Mustafa was recorded. The learned trial Judge has believed the defence evidence in respect of plea of alibi taken by accused-respondent Mustafa. He has produced five witnesses in support of his plea. According to his plea, on the day of occurrence he was arrested by Pishta Khara police and case was registered against him under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979. Since the acquitted accused-respondent was serving in Irrigation Department, therefore, the Investigating Officer also got verified his departure on the fateful day from the office by procuring the attendance register of accused-respondent Mustafa who was shown absent. The learned trial Court has believed the defence evidence and statement of the accused recorded under section 340(2), Cr.P.C. on the grounds that nothing has been brought out in cross-examination to make this evidence unreliable. He has also taken into consideration the opinion of F.S.L. The evidence against the acquitted accused-respondent is not sufficient for his involvement in the offence. It is well settled law that when an accused is acquitted of the charges, he enjoys double presumption of innocence in his favour and the appellate Court are required to be careful while, considering appeal against acquittal. Reference may be made to 2004 SCMR 1185 wherein it is held that:-- "It is well settled principle of criminal justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and the Courts seized with acquittal appeal under section 417, Cr.P.C., are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles in acquittal judgments."

18. The upshot of our above discussion is that there is ocular evidence of unimpeachable character to connect the convict-appellant with the offence. The ocular evidence is corroborated by medical evidence and recovery of empties. The report was lodged in reasonable time keeping in view the circumstances of the occurrence. The convict-appellant is directly charged. He also remained absconder without plausible explanation.

19. So far as criminal revision for enhancement is concerned, it has no force because the learned trial Judge has mentioned reasonable mitigating circumstances on the basis of which the sentence of life imprisonment was awarded. This is prerogative of the trial Court.

20. In view of our above discussion, while maintaining the impugned judgment dated 29-6-2005 passed by Additional Sessions Judge-IV, Bannu, Criminal Appeal No.95 of 2005, Criminal Revision No.33 of 2005 for enhancement of sentence and Criminal Appeal No.89 of 2005 against acquittal of Mustafa accused-respondent are hereby dismissed. H.B.T./95/P ??????????????????????????????????????????????????????????????? Appeal and revision dismissed.