2005 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

Vide judgment dated 7-4-2005, recorded by Mr. Muhammad Adil, learned Additional Sessions Judge, Bannu, appellant Noor Zaman son of Habib Khan, aged about 49/50 years, resident of Taziri, Bizen Khel, Bannu was convicted under section 302(b), P.P.C. for causing murder of his uncle Pauzar Khan, and was sentenced to suffer life imprisonment with further direction to pay compensation in the sum of Rs.1,00,000 (one lac) to legal heirs of deceased under section 544-A, Cr.P.C. or in default thereof to undergo 3 years' S.I. Benefit of section 382-B was however, extended to the appellant.

2. The appellant, feeling aggrieved, has challenged his conviction and sentence by filing instant Criminal Appeal No.35 of 2005 through Superintendent of Jail, Bannu.

3. The crime in question is alleged to have taken place on 23-7-1998 at 1845 hours near the house of the deceased, situated in Taziri Bizen Khel, Bannu, in the precincts of Police Station Township, Bannu. The report about it was made the same day at the spot at 20-00 hours by Mst. Nek Zada, widow of the deceased, complainant in this case. The report was recorded by P.W. Gulzar Khan, the then S.H.O. Police Station Township, Bannu.

4. Briefly stated, case of the prosecution is, that on the fateful day, complainant was present in the house when she heard the noise of the deceased. She came to the street and found the accused aiming his klashnikov at the deceased, demanding money from him. On refusal, the accused started firing as a result of which the deceased was hit and expired after some time. After accomplishing the mission, the accused made good his escape. The motive behind the occurrence was stated to be refusal of. the deceased to fulfil the demand of the accused for money.

5. On receipt of information, regarding the occurrence, S.H.O. Gulzar Khan, reached the spot and recorded the report at the instance of Mst. Nek Zada, complainant and sent the same to Police Station, Township Bannu, wherein it was incorporated into F.I.R. by S.-I. Sher Mehmood Khan P.W. the witness in hand prepared injury sheet Exh.P.M./1, and inquest report Exh.P.M./2 and dispatched the dead body of the deceased to the mortuary for post-mortem examination. He then prepared site plan Exh.PW.8/2, at the pointation of the complainant with all its foot notes and sketches. During spot inspection 7 empties of 7.62 bore P.1, freshly discharged lying in scattered position from the place of accused were taken into possession through recovery memo. Exh.P.W.7/2 and sent to Fire-arm Expert, Peshawar for opinion. He also collected blood-stained earth from the place of deceased and secured it into a parcel. He also took into possession blood-stained clothes of the deceased brought by F.C. Muhammad Zaman P.W. from the hospital and sent the same to Serologist for opinion. The accused was arrested on 9-11-2003.After completing the investigation, he submitted challan against the accused on 17-11-1998.

6. At trial, the prosecution in order to prove its case, produced as many as 8 witnesses. P.W. Dr. Riaz Ahmad, Medical Officer, D.H.Q. Hospital, Bannu on 24-7-1998 at 7-00 a.m. conducted post-mortem examination of the deceased and found three entry wounds and three exit wounds on the person of the deceased caused by fire-arm. After close of the prosecution evidence, the accused was examined under section 342, Cr.P.C. He repudiated the prosecution allegations and claimed to have been falsely charged. He did not produce any defence evidence nor did he appear in the witness-box as required under section 340(2), Cr.P.C.

7. In support of appeal, Mr. Farooq Akhtar, Advocate for the appellant mainly contended that the appellant has been convicted on very highly interested and doubtful evidence; that there is no corroborative evidence to supplement ocular evidence and delay of one hour in lodging the F.I.R. in the peculiar circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly, preparing the report, keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate. The learned counsel also submitted that abscondence is the weakest type of corroborative evidence and where actual evidence is disbelieved, it cannot form a basis for conviction. In this regard he placed reliance on Ali Raza v. Fazal Wahid PLD 2004 Pesh..20; Farman Ali and others v. The State PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823.

8. On the contrary, Mr. Ehsanul Haq Malik, Advocate, appearing on behalf of the State defended the impugned judgment whole heartedly maintaining that the prosecution has abundantly proved its case through evidence of high standard and good quality against the appellant and there is no such material contradiction, on the basis of which trial of the case can be said to have been vitiated.

9. We have heard the arguments of learned counsel for the parties and perused the record with their assistance.

10. The entire edifice of the prosecution case hinges on ocular testimony of Mst. Nek Zada, complainant (P.W.6), medical evidence, motive, recoveries and abscondence of the appellant.

11. Mst. Nek Zada, complainant, the sole eye-witness in this case, has consistently adhered to the prosecution version word by word and fully supported the prosecution case giving all necessary details. She has faithfully deposed what was witnessed by her. Her version could not be impeached or shattered despite lengthy and searching cross-examination. During cross-examination of the complainant, no material questions were put to her to shake intrinsic value of her evidence. It is now a settled rule of law that if the testimony of relative is corroborative through circumstantial evidence or other pieces of evidence, then their relationship, friendship or relation with the deceased will not be B sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The mere fact that a witness is relative of the deceased is not per se enough to discredit the witness unless it is established that the witness was inimical towards the accused and if it is found, that in the circumstances of the case, the presence of such a witness cannot be denied, then his evidence could not be discredited. It may be mentioned here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken, his statement cannot be discarded for minor contradictions. It has not been brought on record by the defence that the involvement of accused in the case is on c account of ulterior motives coupled with mala fides to ensure his conviction. Truthfulness or falsehood of a prosecution witness can be verified by making reference to other incriminating material available on record which may be in the shape of oral testimonies of co-witnesses of the incident or recovery of crime-empties, promptly lodging report of incident and circumstantial evidence etc. Her lodgment of F.I.R. without any loss of time and describing the. role played by the accused in the commission of the offence lend full strength to the prosecution story. Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Twaib Khan and another v. The State PLD 1970 SC 13; Irshad Ahmad and others v. State and others PLD 1996 SC 138 and Ahmad Khan v. The State 1999 SCMR 803.

12. No doubt it is a case of solitary witness but the testimony of a solitary witness itself is not a demerit or disqualification as can call for its repudiation, when otherwise it rings true and inspires confidence. The argument that the eye-witness being the widow of the deceased is highly interested, cannot be relied upon, is not tenable both legally and logically in the absence of any defect in its intrinsic and probative worth and in the absence of any motive on her part to falsely implicate the accused. It is now well-entrenched principle of law that conviction can be based on the statement of solitary eye-witness provided the same is confidence inspiring and the intrinsic worth of the same rings true and satisfies the conscience of the Court. It has been consistently held by the superior Courts that it is the quality of the evidence which is to be seen and not quantity. Iftikhar alias Istikhar v. The State and others PLD 2004 Pesh. 143; Mali v. State 1969 SCMR 76 and Muhammad Siddique alias Ashraf and 3 others v. State 1971 SCMR 659.

13. An objection has also been raised on behalf of the appellant that ocular account of the incident is in conflict with the medical evidence. The submission is without substance. The medical evidence is in complete harmony with the ocular testimony of the complainant and no conflict could be pointed out to create dent in the prosecution story.

14. A strong motive is alleged against the appellant. The appellant is stated to have taken the life of the deceased on account of the deceased's refusal to fulfil the demand of the appellant for money. The motive is furnished in the F.I.R. as well as in the statement of the complainant. The motive has been established satisfactorily. Anyhow, 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 H mere absence of motive is no ground to doubt the truth of prosecution case. Muhammad Ramzan v. The State PLD 1992 (sic) 302; Government of Sindh v. Sobharo 1993 SCMR 585; Gul Raza v. The State and 4 others PLD 2004 Pesh. 219; Rahim Shah v. The State and another 2004 PCr.LJ 1129 and Awais and another v. The State and another 2004 PCr.LJ 377.

15. The crime in question is alleged to have taken place on 23-7-1998. The appellant was arrested on 9-11-2003. No doubt, it is true that the abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge and in absence of any other corroborative evidence, this evidence even if found convincing, would I not be sufficient by itself to warrant the conviction of the accused person on a charge of murder, but in the instant case, the prolonged and noticeable abscondence of the appellant extending to five years three months and seventeen days would go a long way to corroborate and strengthen the truth of the prosecution version. Aminullah v. The State PLD 1976 SC 632.

16. The learned counsel for the appellant contended that there were some serious lapses in the process of investigation, which had vitiated the trial. However, he has not been able to point out any so-called serious defects in the investigation, other than certain minor lapses which do not affect the validity of the trial. We, as a result of the above discussion, have been constrained to hold that the prosecution has successfully brought home the guilt to the appellants beyond any shadow of reasonable doubt. The defence has miserably failed to extract any material discrepancies or contradictions $ from the statements of the witnesses. The appeal is destitute of force. The same is hereby dismissed. The impugned judgment is maintained. H.B.T./525/P Appeal dismissed.