2003 P Cr (PLP)

(3) A.F.A. entry wound on the left side neck size " x ". (4) Right half of the skull scalp and brain matter is destroyed and smashed. (5) Four fire‑arm entry wounds oil the left side abdomen side " x " each (6) Four fire arm exit wounds on the back to the right side sizes 1/3" x 1/3'". (7) A.F.A entry wound on the front of the left upper arm size " x ". (8) A.F.A exit wound on the front of the left elbow size " x ". (9) A.F.A. tearing wound on tile left foreamt frontal aspect size 2" x 3" muscle deep. (10) A.F.A. entry wound on the lateral aspect of left knee size " x ". (11) A.F.A. exit wound on the medial aspect of the left thigh size 1" x ". Cranium and spinal cord, scalp membrane and brain were found injured and skull fractured. Abdomen, walls, peritoneum, small intestines and large intestine were also found injured and stomach was healthy and full with semi‑digested food. Time between injury and death was found instantaneous whereas time between death and post‑mortem examination was within 24 hours. On the same day at 11‑40 p.m. Dr. Qaim Shall conducted the post‑mortem examination on the dead body of Ayaz Khan and found the following:‑‑ (1) A.F.A. entry wound on the front of left chest 2" medial to the anterior axillary line in the third intercostal space size " x ", (2) A.F.A. entry wound on the right left size " x ". (3) A.F.A. entry wound on the right flank size " x ". Thorax walls, ribs and cartilages, pleurae, right and left lungs and heart, with pericardium, were found injured. Abdomen: Walls peritoneum, small and large intestines, right kidney, were also found injured. Stomach was healthy and full with semi‑digested food. Death was found to have occurred due to damage to the heart and both lungs as a result of injury No.1 caused by fire‑arm. Time between injuries and death was instantaneous and time between death and post‑mortem examination was 24 hours.

7. The prosecution in order to substantiate the charge examined nine witnesses in all. Mst. Sajida complainant supported the prosecution version and furnished eye‑witness account of the incident. P.W. Ajab Khan claimed to have accompanied the complainant party at the time of occurrence and seen the incident was withheld by the prosecution on account of having been won over by the accused party.

8. In his statement recorded under section 342, Cr.P.C. the appellant denied the prosecution allegations and claimed to have been falsely charged on mere suspicion. He disputed absconcion and stated that on learning about the occurrence he voluntarily surrendered before the police. In answer to a question as to why the prosecution witnesses have deposed against him he stated:‑‑ "Only complainant being closely related to both the deceased has deposed against me on account of suspicion though I was in no way involved in the dismissal of the deceased Ayaz Khan nor there was any quarrel between us. Later on, I have come to know that deceased Ayaz Khan was dismissed from his service on account of his forged educational certificate and unsound character." He did not want to examine himself under section 340(2), Cr.P.C. and he did not offer any evidence in defence.

9. We have heard at length Mr. Javed A. Khan, Advocate for the appellant, Ms. Musarrat Hilali, Additional Advocate‑General for State and Mr. Asadullah Khan Chamkani, Advocate for the complainant. We have also gone through the material available on the record with their able assistance.

10. Learned counsel for the appellant attacked propriety of impugned judgment on various grounds and contended with force that the learned trial Court has not only misread the evidence but also greatly mis-exercised its jurisdiction by placing undue reliance on the solitary deposition of Mst. Sajida complainant, who has totally failed to justify her presence at the spot. The learned counsel also submitted that the F.I.R. in this case has been lodged with considerable delay and that P.W. Ajab Khan claimed to have seen the occurrence, has been withheld by the prosecution without good reason which has created dent in the prosecution case. The learned counsel further asserted that the motive set up by the prosecution has not been established and the appellant had no reason to participate in the offence. In reply to the submissions of learned counsel for the complainant, regarding abscondence of the appellant, learned counsel for the appellant urged that abscondence has not been proved: that the appellant did not abscond and on hearing of the charge tie voluntarily appeared before the police. Concluding the arguments the learned counsel contended that neither the medical evidence nor the circumstantial evidence brought on the record support the prosecution version and in absence of corroborative evidence, learned trial Judge had no good reason to draw a conclusion that prosecution has succeeded to establish its case beyond shadow of reasonable doubts. In support of the submissions, he relied on Muhammad Ilyas v. The State 1997 SCMR 25: Asghar v. The State PLD 1970 Lah. 878, Mehboobur Rehman v. The State 1996 PCr.LJ 238 (Peshawar) and Gul Muhammad v. The State 2002 PCr.LJ 1177 (Karachi).

11. Learned counsel for the complainant, on the contrary, supported the impugned judgment of conviction, and attempted to argue that overwhelming evidence was available on the record to implicate the appellant with the murder of Zaman Khan and his son Ayaz Khan, a young man of 27/28 years of age and as such the learned trial Judge was quite justified to hold that prosecution has succeeded to establish its case against the appellant and the absconding co‑accused. The learned counsel asserted that the‑medical evidence, recoveries and evidence on the point of motive fully connect the appellant with the guilt. He further submitted that immediately after the occurrence‑ the appellant disappeared from the village and remained in hiding for sufficient long time which clearly proves his guilty conscience. To add vigour to the submissions, reliance was placed on Dosa and others v. The State 2002 SCMR 1578, Abdul Ghafoor v. The State 2000 SCMR 919, Muhammad Amin v. The State 2000 SCMR 1784, Jan Muhammad v. Muhammad Ali and 3 others 2002 SCMR 1586, The State v. Mushtaq Ahmad PLD 1973 SC 418 and Allah Bakhsh v. Ghulam Rasool and others 1999 SCMR 223.

12. It needs no reiteration that while passing an order of conviction of an accused for murder the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. Before recording an order of conviction all the facts and circumstances of the case must be taken carefully into consideration and the golden principle of the Criminal Jurisprudence must be borne in mind that in case of murder the onus of proof always lies upon the shoulders of the prosecution and that the case; must be proved against the accused beyond any reasonable doubt. Ghulam Abbas and others v. The State 2001 PCr.LJ 1672, Tariq Parvez v. The State 1995 SCMR 1345 and Hakim Ali and others v. The State 1971 SCMR 432.

13. Coming to the instant case, we find that appellant is one of the accused persons directly nominated in the promptly lodged. F.I.R. by Mst. Sajida complainant for murder of her husband Zaman Khan and son Ayaz Khan. The matter has been reported to the police without loss of time. It is not denied that the promptitude in lodgment of the First Information Report, per se, is not a guarantee of truthfulness of its contents. But where a first informant/complainant has no time to reflect upon the incident, has no occasion to consult with his family members and to ponder over the matter in order to concoct a story whereby he could assign role of his choice to his enemies, the F.I.R. narrative can be considered fairly true account of the occurrence. Prompt lodging of the F.I.R. in this case is a circumstance corroborating the eye‑witness account furnished by the complainant. Nothing is available on the record of this case to doubt the claimed lodging of the F.I.R. at the stated time. This promptly lodged F.I.R. contains all the relevant details of the occurrence including the names of the accused as well as the role played by them during the incident. We share the view of the learned State Counsel that there was little time available in this case firstly for procuring the complainant and then for deliberations for the purpose of substitution or false implication of the appellant. The complainant has fully justified her presence at the spot and we see no good reason to exclude her testimony out of consideration. The complainant has given a straightforward and faithful account of the tragedy and despite lengthy cross‑examination her testimony could not be shaken. The solitary statement of the complainant is sufficient to sustain conviction of the appellant. The contention of appellant's counsel that prosecution has failed to produce an independent evidence to corroborate the statement of complainant, is misconceived. It is true that complainant is closely related to the deceased but mere relationship has never been considered to be sufficient to discard the testimony of an eye‑witness if otherwise it inspires confidence of the Court and remains unshaken when subjected to the test of cross‑examination. The presence of the complainant at the spot is neither extraordinary or unusual. The argument that the appellant was substituted for the real assailant has not been supported or substituted by any circumstance existing on record. We have not been shown any other person more inimical to the deceased other than the appellant. The plea of substitution is banal and is not supported by any aspect of the case.

14. It was also contended before us that the medical evidence runs contrary to ocular evidence when seen in the context of number, locale and dimensions of the injuries found on the person of the deceased and the presence of semi‑digested food in the stomach of the deceased at the time of post‑mortem examination. The learned counsel attempted to argue that the occurrence had not taken place at the time and in the manner described by the prosecution and the deceased were done to death by some unknown assailants at the early hours of the morning. The submission is misconceived. Learned counsel has remained unable to show that the medical evidence is not in accord with the prosecution story. Modi's Text Book of Medical Jurisprudence and Toxi has the following relevant passage with reference to the time of death calculated according to the degree of digestion of the stomach contents:‑‑ "It has been ascertained by physiologists that a mixed diet containing more of animal food and less of vegetable food as ordinarily taken by a European leaves the stomach in. four to five hours after it is completely digested, while a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion. But this cannot always be relied upon in determining the time of death, inasmuch as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty -four hours afterwards. In one case the food consisting chiefly of rice and Dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It must also be remembered that the process of digestion in normal healthy persons may continue for a time after death."

15. It is not denied that evidence furnished by an expert is always treated to be of confirmatory nature qua the ocular testimony and if latter kind of evidence is trustworthy, confidence‑inspiring and consistent then the expert opinion will not outweigh it, Muhammad Hanif v. The State PLD 1993 SC 895 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758.

16. Learned counsel for appellant next contended that P.W. Ajab Khan claimed to have been accompanying the complainant party at the time of occurrence, was most natural, independent and important witness of the incident but his evidence has been withheld by the prosecution without good reason. It is true that P.W. Ajab Khan claimed having seen the occurrence but it is equally true that he has been won‑over by the accused party on account of close relationship and for this reason the prosecution was left with no option but to abandon him. It is settled proposition of law that prosecution is required to produce best kind of evidence to establish accusation against accused facing trial but at the same time it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are sufficient to prove prosecution case. It is the quality of evidence and not quantity which matters. Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Mehboob Shah v. The State PLD 1987‑ SC (AJ&K) 47.

17. Another circumstance weighing heavily in favour of prosecution is prolonged abscondence of the appellant. The occurrence having taken place on 19‑8‑1996, the appellant surrendered before the police on 5‑10‑1999. There is noticeable abscondence spreading over three years. The explanation offered by the appellant in his statement under section 342, Cr.P.C. is least satisfactory. Immediately after the incidentl the appellant went into hiding and remained fugitive from law for sufficient long time. The disappearance seems to have been made by the appellant with sole object to save himself from the clutches of law. It is true that abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge as held by the superior Courts from time to time because innocent persons may go into hiding due to fear of unjustified harassment and victimization at the hands of the police but in the instant case the abscondence when judged in attendant facts and circumstances of the case points out the guilt of I. appellant and exhibits his guilty conscience. This circumstance has been rightly treated tilting in favour of the prosecution. Aminullah v. The State PLD 1976 SC 632.

18. A strong motive is alleged against the appellant for having participated in the commission of crime and taken lives of two persons. It is disclosed that one of the deceased Ayaz Khan employed in Police Department was removed from service and the accused party was suspected instrumental in his removal. The motive is highlighted in the F.I.R. as well as in the statement of the complainant. Though the motive has been denied by the appellant in his statement under section 342, Cr.P.C. but in the cross‑examination no suggestion was made to him regarding non‑existence of motive. Any how, it is not denied that mere absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. Motive is not considered a sine qua non for proving the offence of murder and mere absence of motive is no ground to doubt the truth of prosecution case. Government of Sindh v. Sobharo 1993 SCMR 585, Muhammad Ramzan v. The State 1992 PLD 302(1) and Shabir Ahmad v. The State 1997 PCr.LJ 1539.

19. After hearing the arguments of learned counsel for the parties with reference to the material available on the file and the case‑law cited at the Bar, we are confident that prosecution has succeeded to prove its case against the appellant and the solitary statement of Mst. Sajida complainant has been rightly believed by the learned trial Judge to make basis for conviction of the accused. The minor contradictions and omissions pointed out in the testimony of the complainant are insignificant and do not shatter the prosecution case. The statement of the complainant also gains strength from the medical evidence recoveries, motive and abscondence of the appellant. Conviction can be maintained even on the basis of solitary statement and close relationship of the witness with the deceased by itself is no ground to exclude the statement out of consideration. 20 In the result and for the, foregoing reasons, we are of the view that no other conclusion can be drawn except that the appellant has been rightly found guilty for the crime in question and thus the impugned judgment dated 20‑5‑2000 being unexceptionable warrants no interference of this Court. The same is maintained. Appeal stands dismissed. N.H.Q./700/P Appeal dismissed.