2005 PLP 2249 (YLR)

IJAZ-UL-HASSAN KHAN, J.

The appellant namely Hanif Gul son of Noor Gul, aged about 75 years, resident of Deh Hajizai, Caharsadda, has filed instant Cr. Appeal No.616 of 2004, assailing the judgment, dated 12-7-2004 recorded by Mr. Zafar Iqbal Khan, Additional Sessions Judge, Charsadda, whereby the appellant was convicted under sections 302/148/149, P.P.C. and sentenced to life imprisonment on three counts each with a fine of Rs.1,00,000 on three counts each, under section 544-A, Cr.P.C. or in default thereof to further undergo six months' R.I. on each count. All the sentences were directed to run concurrently. However, the appellant was extended benefit of doubt and acquitted of the charge under section 324, P.P.C.

2. The crime in question is alleged to have taken place on 18-6-1994 at 10-00 a.m. in the lands of the complainant Mujib Gul, in the limits of Deh Kangra in the precincts of Police Station Batagram, distant 6/7 Killometres from the venue of occurrence. The report was lodged the same at 11-30 a.m. by complainant in the Police Station and it was recorded by P.W. Haji Gul, the then S.H.O. of the Police Station concerned.

3. The prosecution story in brief, is, that on the fateful day i.e. 18-6-1994, complainant Mujib Gul along with his father Ibadur Rehman, uncle Ghaniur Rehman and cousins Janas Khan (deceased), Akhtar Rehman and Haji Rehman was present in his fields busy in weeding sugar cane crops, when in the meanwhile at 10-00 a.m, accused Hanif Gul, Shahid, Perveaz, Talib, Janas and Bashirullah armed with Kalashnikovs, came there and started firing at the complainant party, as a result whereof Ibadur Rehmman, Ghaniur Rehman and Janas Khan were hit and died at the spot. The complainant Akhtar Rehman and Haji Rehman escaped unhurt. Previous enmity between the two groups was stated to be the motive leading to the incident.

4. After recording the report Exh.PA at the instance of the complainant, S.H.O. Haji Gul (P.W.12), prepared injury sheets and inquest report of the deceaseds and dispatched the dead bodies to mortuary for post-mortem examinations. He then left for the spot and prepared site-plan Exh.PB at the pointation of the complainant, took into possession blood-stained earth from the places of the deceases and sealed the same into different parcels in presence of marginal witnesses. He also took into possession 5 empties of 7.62 bore and one spent bullet of the same bore through recovery memo. Exh.PC. He recorded statements of prosecution witnesses, obtained warrants under section 204, proclamation under section 87, Cr.P.C. against the accused and after completing necessary investigation, submitted challan against the accused.

5. At the trial, prosecution in order to prove its case and substantiate the charge, produced 12 witnesses in all. Complainant Mujib Gul (P.W.9) and Akhtar Rehman (P. W.10) furnished eye-witness. account of the incident and charged the accused for the commission of crime.

6. Dr. Jehangir Khan (P.W.3) Medical Officer, D.H.Q. Hospital, Charsadda on 18-6-1994 conducted post-mortem examinations of the deceased and found several fire-arm inlet and exit wounds on their person. The wounds were not countable.

7. The accused in his statement recorded under section 342, Cr.P.C. repudiated the prosecution allegations and claimed to have been falsely charged. Responding to a question as to what is your statement and why you are charged, the accused stated that in fact there was cross firing between the deceased and Akhtar Munir in consequence whereof Akhtar Munir received fire-arm injuries at the hands of the deceased. This fact was concealed by the Investigating Officer and A.S.-I. Fazal Mir with active connivance of the parties and he (accused) was falsely implicated in the case.

8. He appeared as his own witness on oath as required under section 340(2), Cr.P.C. and denied his participation in the case abscondence after the incidence.

9. The learned trial Judge on overall assessment of the evidence pointed out that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned Court accepted the evidence furnished by the complainant Mujib Gul and P.W. Akhtar Rehman, corroborated by medical evidence, recovery of crime empties from the spot, motive and prolonged abscondence of the accused.

10. Mr. Astaghfirullah Advocate, learned counsel for the appellant, in support of the appeal contended with vehemence that the prosecution case is lull of doubts and the evidence brought on record by prosecution is not of such standard which could be made basis for the conviction. The prosecution story is full of inconsistencies, contradictions and improbabilities. The eye witnesses effected improvements in their statements on a number of material points. On the basis of evidence of this nature, conviction cannot be recorded on capital charge. The learned counsel also maintained that the learned trial Court has disbelieved the prosecution evidence under sections 342/148/149, P.P.C. and acquitted accused of the charge of attempted murder but accepted the same set of evidence while awarding sentence to the appellant which is clearly indicative of the fact that the impugned judgment has been recorded in a mechanical manner without application of judicial mind. The learned counsel also maintained that prosecution has suppressed material facts from the Court 'which has made the prosecution story doubtful. The learned counsel further contended that the crime empties recovered from the spot were not sent to fire-arm expert to ascertain whether the same had been fired from one weapon or more which reflects on the prosecution version and crates dent in the prosecution story. Reverting to the question of abscondinn, the learned counsel reiterated that the appellant had left the village along with his family 17/18 years prior to the occurrence and took abode in Punjab to earn livelihood and the abscondence is not sufficient to lay foundation of his conviction. Concluding the arguments the learned counsel submitted that the non-compliance of section 382-13. Cr.P.C. and withholding its benefits which is mandatory is nature, without any cogent reason by the trial Court, is illegal and unjust.

11. From the other side, Miss Neelam A-Khan Advocate, appearing on behalf of the State supported the judgment of the learned trial Court and argued that there is sufficient evidence in this case to warrant conviction and keeping the nature of offence in view, the appellant has been rightly convicted by the trial Court and, therefore, the impugned judgment is not open to legitimate exception.

12. Having heard the arguments of learned counsel for the parties with reference to the material on record, we find that prosecution has succeeded to prove its case to the hilt and the appellant is one of the perpetrators of the crime. Complainant Mujib Gul and Akhtar Rehman P.Ws. are star witnesses in this case. They have fully supported the prosecution story and implicated the appellant and his companions for the firing on the complainant party resulting into murders of Abidur Reiman, Ghaniur Rehman and Janas Khan.

13. Mujib Gul complainant in brief deposed that on the crucial day he along with his father Ibadur Rehman, uncle Ghaniur Rehman and cousins Janas Khan (deceased) Haji Rahim (not produced) and Akhtar Rehman P.W was busy in weeding sugar cane crops in his fields when at about 10-00 a.m. accused Hanif Gul (appellant), Shahid, Perveaz, (convicted co-accused), Talib, Janas (absconding co-accused) and Bashirullah (since dead) armed with Kalashnikovs came and started firing at the complainant party, as a result whereof Abidur Rehman, Ghaniur Rehman and Janas Khan were hit and died instantaneously. The complainant and Akhtar Rehman and Haji Rehman, however, escaped unhurt. He also stated that previous blood lined between the parties was motive for the occurrence. The complainant was duly supported by P.W. Akhtar Rehman. The learned counsel for the appellant assailed the credibility of these witnesses on the ground that complainant and P.W. Akhtar Rehman were not present at the spot and had not seen the occurrence and being closely related to the deceased are unworthy credence. We are afraid the contention raised by the learned counsel by the appellant is devoid of any legal force. Both the witnesses have sufficiently justified their presence at the spot at the time of incident. It is well-settled that mere relationship of the eye-witnesses with the deceased in the absence of any animus on their part against the accused cannot be made the basis of brushing aside their testimony, which is otherwise convincing in nature. Mere relationship of a witness with the deceased is no ground to discard his evidence until and unless he is otherwise found to be unreliable. In a case reported as Igbal alias Bhala v. State (1994 SCMR 1, it was observed:-- "In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not'."

14. It is also apparent from the record that matter was reported to the police without wastage of time nominating the appellant with a specific role. The promptness in lodging the FIR. is yet another factor to strengthen the prosecution case.

15. The medical evidence is in complete harmony and corroborates to the ocular testimony as regard the injuries. The same, therefore, was rightly received as corroborative to the ocular testimony. This was a correct approach towards the matter. We endorse the view taken by the learned trial Judge in this respect.

16. The accused remained absconder for sufficient long time and proceedings under sections 204/87, Cr.P.C. were duly completed against him but the explanation offered by the accused in his statement under section 342, Cr.P.C. is that he did not abscond. Neither any defence witness was examined nor any record was produced to show that he was out of village in connection with labour. As such his explanation goes unsubstantiated. No doubt, abscondence, by itself, is not sufficient to convict an accused person but is a strong piece of corroborative of the direct and circumstantial evidence in the case. The conduct of the accused is indicative of his guilt, when considered in conjunction with the ocular-and circumstantial evidence in the case.

17. Section 382-B, Cr.P.C. is mandatory in nature and ordinarily benefit of this section is to be extended in favour of the accused for the period for which he remained in custody as an under-trial prisoner by a Court. The provision of section 382-B, Cr.P.C. having been held to be mandatory in nature, the Court is required to take into consideration the pre-sentence period spent in jail. Qadir v. State (PLD 1991 SC 1065), Muhammad Rafiq v. The State (1995 SCMR 1525) and Muhammad Zahir alias Tiko v. The State (2004 PCr.LJ 764).

18. In the instant case the appellant has not been extended benefit of section 382-B, Cr.P.C. No reason has been advanced for denial of the same. We feel that the appellant is entitled to the relief of section 382-B, Cr.P.C. and we order accordingly. Having considered the matter from all angles, we are satisfied that prosecution has succeeded to establish its case against the appellant beyond any shadow of reasonable doubt and the appellant has been awarded conviction and sentence for valid reasons. The impugned judgment is well-reasoned and hardly warrants interference of this Court. The appeal is destitute of merit. The same is hereby dismissed. H.B.T./455/P Appeal dismissed.