2002 PLP 1523 (YLR)

8. Dr. Sarfaraz Ahmad (P. W.8) the then Medical Officer L.M.H. Kohat on 3‑8‑1991 at 10‑30 p.m. conducted post mortem examination on the dead body of the deceased and noted the following:‑ External Examination: Symptoms of circulatory shock. Young healthy person.

1. Fire‑arm entry would 1/2" x 1/2" on right side of chest in 4th inter-costal space 1‑1/2" to right of mid sternum.

2. Fire‑arm exit wound on back side of right lumber region about 4" from midline (2" x 1 ").

3. Fire‑arm entry wound 1/2" x 1/2" on right anterior superior iliac spine of waist.

4. Fire‑arm exit wound 1‑1/2" x 1" on upper border of lateral side of right thigh. Internal Examination: Thorax: Walls, ribs and cartilages were injured on right side. Right pleurae injured. Right lung lacerated. Blood vessels injured on right side of chests. Abdomen: Walls injured in right lumber region. Peritoneum injured. Diaphragm right dome injured. Liver posterior side injured. Right kidney injured. Stomach healthy and empty. Muscles bones and joints: Muscles in right lumber region injured. In the opinion of the Medical Officer the victim expired after two/three hours of receipt of injury. Time between death and post‑mortem was found one hour.

9. After close of the prosecution evidence the statement of the appellant was recorded under section 342 of Criminal Procedure Code who denied the occurrence and stated that he was innocent and was falsely involved in this case. In answer to a question regarding abscondence he stated that he was in Karachi in connection with his private service and on learning about the charge he voluntarily surrendered before the police. However, he did not appear in his defence as envisaged by section 340(2) of Criminal Procedure Code neither led any evidence.

10. Believing the prosecution evidence, the learned trial Judge convicted and sentenced the appellant, as mentioned above holding that the prosecution has succeeded in bringing home the charge against the accused through the evidence of independent and disinterested witnesses and that the accused has committed the brutal murder of deceased Khial Badshah over a petty and immoral motive and he deserves exemplary punishment so as to meet the ends of justice.

11. Barrister Zahurul Haq, learned counsel for the appellant rendered lengthy arguments and argued that the prosecution has failed to prove its case beyond reasonable doubt and the trial Judge has failed to apply his mind to the evidence on record and passed the impugned judgment against all norms of justice which is unwarranted under the law. He added that on material particulars prosecution evidence is inconsistent, contradictory and doubtful and thus the same cannot be made subject of implicit reliance. The ocular testimony produced by Nawab Jan and Inam Gul P. Ws. is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it. They have made improvements in their statements, step by step so as to fit in with other evidence on record. He maintained that the trial Court has not thoroughly studied the record so as to reach correct conclusion rather he dealt with the matter in a cursory manner which naturally resulted in miscarriage of justice The learned counsel also raised the point or delay in lodging of the F.I.R. and made an attempt to show that the F.I.R. was lodged with unexplainable delay and the time was consumed in consultation and manipulation. He further contended that medical evidence is in conflict with the ocular evidence which is clearly indicative of the fact that P. Ws. Nawab Jan and Inam Gul were not present at the spot and had not seen the incident. Additionally, he contended that during the days of occurrence the appellant was in Karachi in connection with service and or learning of the charge he came back to the village and surrendered himself to the police and thus the appellant cannot be said to have absconded after the crime in question. He also raised an objection regarding omission on the part of the prosecution to examine Noor Badshah from whose house the appellant is alleged to have brought the rifle and subsequently used the same in the offence. The learned counsel also reiterated that motive has not been established through independent and impartial evidence and despite the occurrence, alleged to have taken place at daylight and in the vicinity of a largely populated village, none has come forward as independent witness in support of the prosecution case. In support of the pleas, reliance was placed on Muhammad Khan and another v. The State (1999 SCMR 1220), The State through Advocate‑General, N.W.F.P. Peshawar v. Tawab and another (2002 PCr.LJ 377), Asghar v. The State (1999 PCr. LJ 20) and Ashraf v. The State (1996 PCr.LJ 1381).

12. Defending the impugned judgment, Barrister Jehanzeb Rahim learned Advocate General N.‑W.F.P. contended with force that learned trial Judge has correctly appraised the evidence brought on record ‑ and his assessment is neither unreasonable nor perverse or in disregard of the accepted principles governing 'appraisal of evidence. Mr. Fakhre Alam, Advocate Private Counsel for the complainant adopted the arguments of learned Advocate‑General and submitted that there is no inherent defect or material lacuna .in the evidence of both the eye‑witnesses and the prosecution has succeeded to prove its case to the hilt and there is no justifiable reason for this Court to interfere. To substantiate the pleas, reliance was placed on Ghalib Hussain and others v. Muhammad Arif and others (2002 SCMR 20), Ata Muhammad and another v. The State (1995 SCMR 599), Manzoor and others v. The State and others (1992 SCMR 2037), Gul Khan v. The State (1999 SCMR 304), Muhammad Din alias Manna v. The State (1976 SCMR 185), Muhammad Ahmad and another v. The State and others (1997 SCMR 899). Sardood and 2 others v. The State (1984 PCr.LJ 649) and Ghaffar v. The State and another (2002 PCr.LJ 1091).

13. We have heard at length the arguments of learned counsel for the parties. We have also gone through the entire material on record with their able assistance including the impugned judgment and the case‑law cited at the bar.

14. It needs no reiteration that where the evidence examined by the prosecution is found inherently unreliable, improbable: and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt and it would be unsafe to rely on such ocular evidence.

15. The prosecution case mainly rests on eye‑witness account of the occurrence furnished by complainant Nawab Jan and Inam Gul P.Ws., motive, medical evidence and abscondence of the appellant.

16. Complainant Nawab Jan P.W. fully supported the prosecution version and implicated the appellant for murder of Khial Badshah deceased. Inam Gul P.W. has also supported the complainant and charged, the appellant for the offence. On thorough scrutiny and minute analysis of entire evidence, it is apparent that deposition of complainant and P.W. Inam Gul are quite consistent and corroborative with each other and could not be shattered despite extensive cross‑examination. All these witnesses are quite natural and they have explained their presence at the spot satisfactorily. Both these witnesses are totally disinterested and unconnected persons. By no stretch of imagination they can be considered to be interested witnesses. An interested witness is a person, who has a motive to falsely implicate a person. Considering the testimony of these' two eye‑witnesses on the touchstone of the aforesaid criteria, we do not find that their testimony is tainted or they had any motive to falsely associate the appellant nor any enmity worth the name has been brought on file to demonstrate that they were involving the appellant in this case falsely. Both the eye‑witnesses have given a consistent, straightforward and confidence inspiring account of the occurrence and they have supported each other on material particulars. Their presence at the spot stands proved satisfactorily. Learned counsel for the appellant has remained unable to satisfy us that statements of these witnesses are pregnant with serious infirmities and contradictions and as such learned trial Judge had no justifiable reason to place implicit reliance on their deposition and make the same a basis for conviction of the appellant.

17. A strong motive is alleged in the F.I.R. which stands proved through the deposition of complainant Nawab Jan and Inam Gul P.Ws. It is not denied that motive by itself neither proves nor disproves any assertion conclusively. If an authority is needed on the point reference can be made to the case of Ahmad Nisar v. The State (1997 SCMR 175) where the following observations were made:‑ "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye‑witnesses if they be otherwise reliable. "

18. Learned counsel for the appellant contended with force that medical evidence is in conflict with the ocular evidence in the sense that both the eye‑witnesses stated that three fire‑shots were made by the appellant which hit the deceased and he, fell on the ground whereas two entrance wounds were found on the dead body of the deceased at the time of post‑mortem examination. It is true that three fire shorts are attributed to the appellant but the fact cannot be lost sight of that ocular account of an incident has preference over the medical evidence when there is overwhelming evidence on record to connect an accused person with the guilt. This discrepancy is not vital to the prosecution case. The possibility of one fire shot having gone stray cannot be excluded in the circumstances of the case. Ata, Muhammad and another v. The State (1995 SCMR 50).

19. An attempt has been made to show that F.I.R. has been lodged with undue delay which reflects on the truth of the prosecution case. The submission is not tenable. The promptitude in lodging of the F.I.R., per se, is not a guarantee of truthfulness of its content. But where a first informant has no time to reflect upon the incident, has no occasion to sit with family members to mull over the occurrence in order to weave a tall story whereby he could assign role of his choice to his enemies, the F.I.R. narrative can be considered to be a fairly true account of the incident. In the instant case we observe that immediately after the occurrence, the complainant with the assistance of his co villagers removed the victim to Civil Hospital Thall for medical treatment. The report was made in the hospital by the complainant as the victim was found unconscious. There appears to be no delay in lodging of the F.I.R. The report has been made promptly giving all necessary details leading to the murder of Khial Badshah deceased.

20. A number of villagers from the locality are stated to have attracted to the spot after four/five minutes of the firing and assisted the complainant in removing the injured to the hospital. It has been urged by learned counsel for the appellant that not independent and disinterested' witness nay been examined from the locality which is clearly indicative of the fact that this was an unseen occurrence. The submission is devoid of force. It is a matter of common experience that no independent and disinterested witness from the locality come forward to depose against an accused person and avoid to poke his nose in the bloody affairs of other people. Yaqoob Shah v. The State (PLD 1976 SC 53) and Muhammad Iqbal v. The State (PLD 1976 SC 291).

21. The crime in question is alleged to have taken place on 3‑8‑1991 at 1600 hours. The appellant disappeared from his village and after 8/9 years of the occurrence he appeared before the police stating that at the relevant time he was in Karachi in connection with service and that on learning about the charge he returned back to the village and surrendered himself to the police. The explanation furnished by the appellant is not satisfactory, keeping in view all the facts and circumstances of the case. The abscondence can be treated as a piece of valuable corroboration if supported by other evidence available on record. The preponderance of authorities on this subject is that abscondence by itself does not constitute substantive evidence, but it can be used and relied upon as corroborative piece of evidence if it provides support to the other evidence. The abscondence would not remedy any other defect, which may be existing in the prosecution case. The abscondence as a piece of conduct of an accused is to be judged in the light of the other evidence on record. Having regard to the facts and circumstances of the case we are of the view that noticeable abscondence of the appellant for a period or 8/9 years corroborates the ocular testimony and, is a pointer towards his guilt. It does not stand to reason that an accused person is charged for the murder but he remains ignorant of it and claims to have come to know of the charge after about a considerable delay. The conduct of the appellant clearly indicates that he had a hand in the murder of Khial Badshah deceased and therefore, he absconded and remained fugitive from law and the explanation offered by him in his statement under section 342 of Criminal Procedure Code is not plausible. Gul Hassan v. The State (PLD 1969 SC 89), Muhammad Bashir v: The State (1970 SCMR 351), Muhammad Rafiq v. The State (PLD 1973 SC 65), Niaz v. The State (PLD 1960 SC 387) and Gul Khan v. The State (1999 SCMR 304).

22. Learned counsel for the appellant in the last limb of arguments urged that Noor Badshah and Shah Faisal have not been examined which has made a dent in the prosecution story. The submission is without substance. It is the quality and not the quantity which matters. The prosecution has produced sufficient evidence to implicate the appellant with the guilt and the prosecution case stands proved through independent and impartial evidence.

23. This brings us to the question or sentence. The appellant has taken the life of a human being in a brutal manner. Admittedly, at the time of attack the victim was unarmed and he was taken by surprise. The normal penalty for 'Qatl‑i‑Amd' is death and the learned trial Judge has appropriately convicted and sentenced the appellant. It is not denied that triviality of motive cannot be made basis for reduction in sentence. The following observations were made in Nawaz Ali v. The State (2001 SCMR 726):‑‑ "It has been held time and again by this Court that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case. If the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt. "

24. Pursuant to the above discussion finding no substance in this appeal we dismiss the same and maintain the impugned judgment dated 1‑3‑2000 passed by the learned trial Judge. Murder reference is answered in affirmative. S.M.A./582/P Appeal dismissed.