1983 PLP 325 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑This appeal by Saleh Muhammad is directed against the judgment of a Division Bench of the Peshawar High Court, dated 14‑7‑1980, dismissing his appeal in a murder case. In this case the occurrence took place at deegerwela on 17‑10‑1975. The prosecution case, briefly, is that Maloom Shah (deceased) alongwith Mutawakkal Shah (P. W. 1), Mir Alam Shah (P. W. 2), Shah Jehan (P. W. 3) and one Rahim Shah, was returning to their village Shodaq, from village Mandani after having purchased fertilizers and Atta. These commodities have been placed on a cart being driven by Maloom Shah. Mutwakkal Shah P. W. was going ahead of the cart while the other persons were following it. When they reached Shah Alam Bridge, Saleh Muhammad appellant and his four co‑accused, namely his father, Muhammad Din, his uncles Muhammad. and Muhammad Zaman and his brother Bashir Ahmad, who were standing on the road, met them. Saleh Muhammad who was armed with a pistol exchanged greetings with Mutwakkal (complainant) and immediately thereafter fired at him with his pistol. But the shot missed. On this the complainant ran with a view to save himself, but noticed that Saleh Muhammad appellant fired another shot at Maloom Shah (deceased), who had come down from the cart in the‑ meanwhile. He was hit and fell down on the road. While the complainant was runing he was fired at by the remaining co‑accused. One of the shots hit him on his left thigh. Thereafter all the accused ran away, alongwith their weapons. Maloom Shah died at the spot. The motive for the occurrence is stated to be that about 7/8 months prior to the occurrence there was a firing in Village Behram Dheri, in which Nazir Muhammad a brother of Saleh Muhammad was killed, for which the accused suspected the complainant party. Mutawakkil Shah complainant, who was injured. was put in a car and was being taken to the police station for lodging the report, but in the way they met a police party led by Jan Muhammad, S. 1. (P. W. 8), to whom Mutawakkal reported the matter. The S. 1. reduced his statement into writing and sent to the Police Station, Tangi where the formal F.

1. R. was recorded at 6 p.m. on the same evening. Jan Muhammad, S. 1., then prepared the injury statement of Mutawakkal and sent him to the hospital. hereafter he visited the spot the dead body of Maloom Shah had already been removed from the spot and taken to his house. The S. I. then went to his house ; prepared the necessary documents and sent the dead body for post‑mortem examination. The following injuries were found on the body of the deceased "(l) A fire‑arm entrance wound about 1/4' x, 1/4' in the right hypochondrias about 2 to the right side of midline. (2) A superficial fire‑arm wound about 1' long, 1/2' wide and skin deep on the entering aspect of left thigh about 2' above the left knee joint." The same doctor examined Mutawakkal Shah and found two fire‑arm injuries on his person. The S. I. then returned to the spot and collected the blood stained earth from there and took it into possession. He also recovered 3 empties of .32 bore shells from the spot and took thorn into possession. Four of the accused, Muhammad Din, Muhammad, Muhammad Zaman and Bashir Ahmad, were arrested by him but he could not trace Saleh Muhammad appellant who had absconded after the occurrence. He was, therefore, got declared a proclaimed offender, and was arrested ten months later to August, 1976,

2. Since the appellant could not be apprehended his four co‑accused were tried for offence under sections 148 and 302/307/149, P. P. C. At the trial the prosecution relied on the testimony of Mutwakkal Shah (P. W. 1) Mir Alam Shah (P. W. 2), Shah Jehan (P. W. 3), evidence of motive he medical evidence. The Additional Sessions Judge, Peshawar, 1nvicted them for offence under sections 148 and 302/307/149, P. P. C. They however, appealed before the High Court against their conviction Bashir Ahmad died during the pendency of the appeal, but the other three were acquitted by the High Court on 4‑5‑1977.

3. The appellant was tried separately after his arrest. At the trial the prosecution produced the same eye‑witnesses but apart from the evidence to motive and the medical evidence it also relied on the fact of his having absconded immediately after the occurrence for a period of ten months. He was convicted by the learned trial Court under sections 302 and 307, P. P. C. Under section 302, P. P. C. he was sentenced to death and under section 307, P.P. C. sentenced to 4 years' R. I. He was also sentenced to fine of Rs. 3,000 or in default to undergo further R. I. for one year‑ His appeal to the High fort was also dismissed ride the impugned judgment and the sentence of his death was confirmed. Feeling aggrieved he filed a petition for leave to appeal and leave was granted to consider, as to why the same evidence which was disbelieve by the High Court with respect to his four acquitted co‑accused should not have been disbelieved with regard to him.

4. We have heard the learned counsel for the appellant and the learned Assistant Advocate‑General at length. We have also perused the impugned judgment as well as the evidence on the record. The learned counsel for the appellant argued firstly that the High Court had disbelieved the three eye-witnesses, namely Mutwakkal Shah (P. W. 1), Mir Alam Shah (P. W. 2) and Shah Jehan (P. W. 3), with respect to the four co‑accused of the appellant and secondly that even in the present case the learned trial Court had not placed reliance on the testimony of Mir Alam Shah and Shah Jehan P. Ws. and urged that the High Court had erred in believing all three of them. The attempted to argue that there were discrepancies in the version given by Mutawakkal Shah P. W. in the F.1. R. and his statement at the trial. He also pointed out certain discrepancies in the statements of the ocher two eye‑witnesses. Relying on Muhammad etc. v. The Crown (PLD1954FC84) and Muhammad Fiaz Baksh v. The Queen (PLD1959PC24), he urged that the credibility, of the witnesses is not divisible and the eye‑witnesses who had been disbelieved with regard to the 4 co‑accused should not have been believed with respect to Saleh Muhammad appellant, unless there was independent corroborative ocular evidence available on the record to support them in that respect. He contended further that the appellant bad denied having absconded and in any case abscondence was a weak kind of evidence which could not be used as corroboration of the ocular testimony.

5. We have given our anxious thought to the case and have perused evidence on the record in the light of the aforementioned contentions advanced by the appellant's counsel, but are not persuaded to agree with him. B The salient difference in the case of Saleh Muhammad and those of his acquitted co‑accused is that Mutawakkal Shah complainant has clearly named him (i.e. Saleh Muhammad) as having fired the fatal shot at the deceased. It is also noteworthy that he had a direct motive for the murder, i.e. the murder of his brother of Nazir in the firing that took place in Behram Dheri, for which the complainant party were suspected. Since Mutawakkal Shah had himself received a fire‑arm injury during the incident his presence at the spot cannot be denied. It was admittedly a day‑time occurrence and he must have seen the assailant. Admittedly, there was no previous hostility in existence between the parties except that the appellant and the co‑accused harbored the aforementioned one sided suspicion. There is nothing on the record to show that Mutawakkal Shah had reason to involve Saleh Muhammad falsely and attributes the fatal shot to him. As is well known,' substitution is a matter of rare occurrence, although it was possible for Mutawakkal Shah for having involved‑ some innocent person, it is not possible that he would have exonerated a person who had fired at the deceased and substituted Saleh Muhammad appellant in his place. Even if the other two eye‑witnesses are ruled out of consideration, his testimony alone is sufficient to bring home the charge to the appellant, specially, when it is corroborated by the appellant's subsequent conduct in having absconded. Under similar circumstances in the case of Gul Hassan and another v. The State (P L D 1969 S C 89), where two of the four accused were acquitted the conviction of the remaining two was maintained on the ground that the testimony against them was corroborated by the fact of their having absconded after the incident was considered sufficient corroboration of the ocular testimony regarding their participation in the crime. For the foregoing reasons we feel that the case of the present appellant is distinguishable from that of the four acquitted co‑accused because of his having been specifically attributed the fatal shot and corroboratory evidence as mentioned above was also available against him. The High Court was, therefore, justified in maintaining his conviction. The appeal is consequently dismissed. Appeal dismissed.