1983 P Cr (PLP)

4. The motive for the occurrence, as disclosed by the prosecution is that a brother of the deceased purchased some land from one Mst. Khanam Bibi which was in possession of the appellant but the deceased tied his brothers dispossessed him forcibly.

5. The autopsy on the dead body of the deceased was performed by Dr. Jamshed Alam (P. W. 3) and the following injuries were found on the dead body (1) A fire-arm wound of entry circular 2" x 2" on the left side of abodmen in its lower-part 5" away from umblicus and 9" below nipple. Part of mesentry was coming out of the wound. Blackening and tatooing was present around the wound. (2) An incised wound 1 " x " x scalp deep on the right side of the head 3 " above the right ear. In the opinion of the doctor the death occurred due to shock and haemorrhage as a result of injury No. 1 caused by a fire-arm which was sufficient to cause death in the ordinary course of nature.

6. Besides the formal witnesses, the doctor, the Investigating Officers, the prosecution relied upon the testimonies of two eye-witnesses, i.e. Zar Khan and Shahpur Khan. The former fully supported the averments made in the F. I. R. His testimony was corroborated by the statement of Shahpur Khan P. W. Both of them categorically stated that they accom panied the deceased when he was fired at by the appellant.

7. The appellant did not produce any evidence, in defence, except that he relied upon the copies of the Khasra Girdaari Exhs. D.B., D.C. D.D., D.E., D.F. and D.G. However, in his statement under section 342, Cr. P. C. he denied the recovery of the gun and the ammunition. He urged that a day before the occurrence, the deceased, who was a man of loose-character, peeped towards the ladies including the appellant's wife while they were taking bath on the spring exclusively used by the women folk of the village. He was thereupon abused by the appellant's wife. It was further stated that the deceased was killed during the darkness of the night and the appellant was implicated due to suspicion.

8. The learned Additional Sessions Judge accepted oral evidence regarding motive and maintained that as there was no previous enmity between the parties, the appellant's dispossession provided motive for the murder of Sikandar Hayat. He believed the testimony of two eye witnesses and on appreciation of the material on the record came to the conclusion that the offence against the appellant was fully established. In this respect he was influenced by the report of Fire-arm Expert which showed that the crime empty P. 9 was wedded to the gun P.

7. The appellant's absconsion also weighed with him. As there was nothing on the record to support the appellant's plea, he rejected the same. It was under these circumstances that the appellant was convicted and sentenced to death.

9. We have heard the learned counsel for the appellant as well as for the State, and examined the record to evaluate their arguments.

10. The learned counsel for the appellant assailed the motive part of the prosecution story to contend that except the uncorroborative testimony of Zar Khan P. W. there was nothing on the record that the appellant was dispossessed by the complainant party. It was urged that according to the statement of Muhammad Raza, Investigation-Officer, he never made any probe in the dispute regarding the land. Reliance was also placed on the statement of Zar Khan P. W. admitting that the deceased being in the service of army did not cultivate the land. The learned counsel then pressed into service the copies of the khasra girdawari, Exhs. D. B. to D. G. to augment his submissions that the land was under the cultivation of the appellant. It was thus argued that the motive set up by the prosecution was not proved and thus the prosecution must suffer.

11. There is nothing on the record to link the copies of the Khasra girdawari relied upon by the defence with the land in dispute. The prosecution merely asserted that the appellant was dispossessed by the deceased and his brothers and never claimed that the land was brought under plough by him. In this respect the learned Additional Sessions Judge's reliance on the statement of Zar Khan P. W. is not misplaced. It may be observed that the motive is not a necessary ingredient of the' offence of murder and is merely a matter of speculation. Thus the weakness or even the absence of motive would not furnish a basis to reject testimonies of the eye-witnesses.

12. It was next argued that the eye-witnesses being closely related to the deceased are not trustworthy. In order to show that the prosecu tion version is not credible and that the two eye-witnesses did not witness the occurrence the learned counsel contended that no ration-card or receipt for the payment of the sale price of the ration, purchased by the deceased was recovered from his person. Regarding Shahpur Khan, P. W. his submission was that his duty-roster was not tendered in evi dence and it was thus not proved that he was on duty on the route from Kohat to Shakkar-darrah. He also banked upon the discrepancy in the statements of P. Ws. 6 and 7 and it was contented that as per statement of the former no one accompanied him from village Hassan Shaddo except the deceased and Shahpur Khan P. W. and vice versa and whereas Shahpur Khan P. W. deposed that he joined Zar Khan, P. W. and the deceased at Shakkar-darrah. His other argument was that the reason given by the eye-witnesses to be present at the spot, was not plausible and that non- production of the natural witnesses from the locality landed support to the defence that the occurrence took place in the dark hours of the night and the appellant was roped in on account of suspicion.

13. It is well-settled that the statement of a witness should evaluated on its own intrinsic merits and his mere relationship with the deceased is not a valid ground for discarding his testimony unless it is established that he was actuated by the enmity or ill-will against the accused. In the instant case the defence has failed to show that the two eye-witnesses nourished a grudge against the appellant and under a sorded- motive falsely implicated him in the murder case. The non-availability of the ration-card or the receipt from the person of the deceased would not essentially lead to the conclusion that he was not on his way from Shakkar-darrah to Hassan-Shaddo as canvassed by the prosecution. Similarly non-production of the duty-roster of Shahpur Khan P. W. does not militate against the reliability of this witness, who successfully with-stood the test of lengthy cross-examination. There is no such contradic tion in the statements of Zar Khan and Shahpur Khan, P. Ws. as pointed out by the learned counsel for the appellant. In this examination-in -chief, Shahpur Khan P. W. stated that he met Zar Khan P. W. and the deceased out at Shakkar-darrah before their departure for Hassan-Shaddo merely as a fact introductory to the facts in issue and his this assertion is not necessarily suggestive of the inference that it was his first meeting with them on the day of occurrence. In any case it was for the defence to have got the matter clarified through the cross-examination.

14. Upon the facts of the case there is no reason to hold that the version given by the eye-witnesses is a cooked up story, particularly when their testimony is corroborated by the recovery and the medical evidence. As regards the non-examination of any witness of the locality it may be observed that the occurrence took place in a hilly-terrace outside the village. As borne out from the statement of Zar Khan P.W, the nearest house was about 300 karams away from the place where the deceased was waylaid by the appellant. It is not shown that someone from the locality also saw the incident of death of the deceased in this view of the matter, it is clear to us, that the presence of the two witnesses at the spot, who accompanied the deceased from Shakkar-darrah to their village, is natural. We also do not feel persuaded that there is a conflict in the medical evidence and ocular evidence. In fact, the learned counsel failed to lay hand on any such variation warranting rejection of the testimonies of these two reliable and natural witnesses.

15. The learned counsel then came forthwith the plea that there was no material before the learned Court below as to the appellant's absconsion and further urged that he himself surrendered before the Kala Bagh Police and that the recovery of the gun and the ammunition attri buted to him was not proved by any reliable evidence.

16. There is ample material on the record to draw an inference that the appellant absconded which necessitated commencement of proceeding under section 87/88, Cr. P. C. against him. Exh. P.L. is the proclamation issued -under section 87, Cr. P. C. requiring him to appear before the Court within 30 days of the publication thereof. As the proclamation went unheeded, vide Exh. P.M. his property comprising immovable assets was attached. Thus the contention raised by the learned counsel in this behalf, is totally deviod of force. Recovery Memo. Exh P.E. is evidenced by Subedar Saleem Muhammad (P. W. 5), Rashid Ahtnad H.C. (P.W. 8). As observed above the appellant was arrested by Muhammad Raza, S.H.O. (P.W. 9) in the area of Tabisar. Subedar Saleem Muhammad belonged to Village Naryab Dakh. Tabisar and in his statement has explained his presence when the appellant was arrested and the recovery affected from him. The other witness namely Rashid Ahmad H.C. (P.W. 8) is a police official and there is no reason that he should have been instrumental in planting the gun on the appellant.

17. After going through the record and hearing the learned counsel for the appellant, we find no reason to differ from the view taken up by the learned Additional Sessions Judge, that the appellant is guilty of committing the murder of Sikandar Hayat and thus he has been rightly convicted under section 302, P.P.C. It is correct that both Zar Khan and Shahpur Khan, P.Ws. have not been believed in respect of Taj Muhammad co-accused, but the proposition that the evidence found false in part should be disbelieved in whole no longer holds good. It is the duty of the Court to sift the evidence and find the truth from the falsehood. In this connection we feel that the appraisement of evidence made by the learned Additional Sessions Judge is correct and the impugned judgment does not call for any interference. Even on the question of sentence there is no mitigating circumstances in this case to call for a lesser punishment.

18. For the foregoing reasons, the appellant's conviction and sentence are upheld. Accordingly his appeal is dismissed and sentence of death confirmed. Appeal dismissed.