P L D 2001 Peshawar 112 (PLP)

SALEEM DIL KHAN, J.

Mohabat Khan appellant stood trial in the Court of Additional Sessions Judge/Izafi Zillah Qazi Shangla in Sessions Case No.63/8 entered through F.I.R. No. 123 dated 20-5-1995 registered at Police Station Alpuri, District Shangla under sections 302/324/34, P.P.C. The trial concluded in the finding of guilty against Mohabat Khan appellant and through order/judgment dated 16-7-1998 he was convicted under section 302/34, P.P.C. on three counts and was thus, sentenced to 25 years' R.I. on each count and was also ordered to pay an amount of Rs.50,000 on each count as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C, and to further 6 months' R.I. in default of payment compensation. He was further convicted under section 324, P.P.C. and sentenced to 5 years' R.I. The substantive sentences of imprisonment were ordered to run concurrently. The appellant has assailed the impugned judgment, conviction and sentence through the instant appeal.

2. Brief facts are these: Bakht Rawan, A.S.I., Police Station Alpuri was on Gasht on 20-5-1995 when he learnt about the occurrence. He rushed to the scene of occurrence where Sher Nawab P.W.2 lodged report regarding the occurrence. The allegations contained in the F.I.R. are to the effect that he and his brothers had purchased a piece of land known as "Lwai Kareen" from one Amir Nawab resident of Karshat in lieu of Rs.1,30,

000. He further states that he had asked the appellant and the absconding accused to reach the said land for demarcation of the boundaries of the land and he alongwith his three brothers went out of their house in the morning. He alongwith Sher Afzal, Sher Zaman and Sher Ali (all dead) reached the spot where Amir Nawab vendor of the land was present but the appellant and the co-accused were absent. Amir Nawab pointed out the boundaries to the complainant and his three brothers (all dead) and then went to his village, Karshat. The complainant and his three brothers were coming back to their home and reached Sherin Khwargai where Mohabat Khan appellant alongwith Muhammad Khan and Gul Rahman were present duly armed with Kalashnikovs, Mohabat Khan appellant alognwith Muhammad Khan and Gul Rahman (absconding accused) started firing at them as result of which Sher Afzal was hit with the fire of Mohabat Khan while Sher Zaman was hit with the fire of Muhammad Khan and Sher Ali was hit with the firing of Gul Rahman: All the three injured succumbed to the injuries and died on the spot. The complainant further alleged that an ineffective attempt was made on his life but he escaped the firing by taking shelter on the Pulla (embankment).

3. The report was reduced into writing by Bakht Rawan, A.S.I., P.W.10 which is Exh.P.A. and the same was incorporated in the F.I.R. Exh.P.W.10/1. This witness then prepared the site plan on the pointation of Sher Nawab P.W.2 which is Exh.P.W.2/1. He also recovered empty shells of .12 bore and 7.62 bore, blood-stained earth, spent bullet, one shoe and a Chadder from the spot. Thereafter, this witness raided the house of the accused where Ire apprehended Mohabat Khan appellant armed with a shot gun. Mohabat Khan was injured and he lodged report with this witness which he recorded. The statements of the P.Ws. were recorded by this witness.

4. The circumstantial evidence has been proved through Iqbal Constable (P.W.1) who testified the correctness of memo. Exh.P.W.l/1 through which the blood-stained clothes were recovered. Said Rahman S.H.O., P.W.3 had partially investigated the case while Bakhti Khan, Constable P.W.4 is witness to memo EXh.P.W.I/1. The recovery of blood stained earth, 4 empty shells of .12 bore and 8 empty shells of 7.62 bore one shoe and one Chaddar blood-stained were recovered iii presence of Muhammad Afroze P.W.7 and Abdul Hadi P.W.8. These witnesses have testified the correctness of recovery of memos. Exh.P.W.7/2 to Exh.P.W.7/7. Muhammadi P.W.9 has testified the recovery of shot gun from Mohabat Khan appellant and the correctness of memo. Exh.P.W.9/1.

5. The ocular account of the occurrence was furnished by Sher Nawab P.W.2 who has narrated the same story at the trial which he had revealed in the F.I.R. Since the prosecution story has been reproduced in the initial part of this judgment, therefore, need not be reproduced. The version given by Sher Nawab P.W.2 has been supported by two eye-witnesses named Sher Muhammad P.W.5 and Sher Ahmad P.W.6. It is known to all that post -mortems are not conducted in this area, therefore, the post-mortem examination report is not available.

6. Learned counsel for the appellant mainly contended that the witnesses are closely related inter se and are thus, interested witnesses; that there are discrepancies in the statements of the witnesses; that Sher Nawab eye-witness has not been examined, that .12 bore shot gun has not been mentioned in the F.I.R. and that the appellant is of the age of 70 years and was unable to participate in the occurrence.

7. All these arguments were contested by the learned counsel for the complainant as well as the learned counsel representing the State and it was stressed that the parties are closely related and there is no chance of mis identification or substitution; that the prosecution has successfully proved its case and that the consistent statements of the eye-witnesses are confidence inspiring.

8. After hearing the learned counsel for the rival parties and going through the record with their valuable assistance, we find that the existence of some dispute over the newly purchased property was certainly there but mere factum of such minor dispute would not make the P.Ws. interested A witnesses. By the time it is now well-settled that statement of a witness, who is interested cannot be discarded or is not reliable, as relationship by itself is not a valid ground for discarding or rejecting the testimony of such a witness. In case of such evidence, it is however, obligatory upon the Court to scrutinize the statements of interested witnesses with care and caution and if on proper scrutiny evidence of such a witness is found to be intrinsically reliable or inherently probable, then it is sufficient to base conviction on such evidence. In the instant case, the appellant has not denied his presence at the place of incident because he has lodged the F.I.R. against the complainant party, which confirms his presence at the place of incident.

9. On correct reading of evidence, we were not convinced regarding the discrepant statements of the P.Ws. because the learned counsel for the appellant could not lay hand on any material discrepancy. The only circumstance which was strenuously argued in this behalf was the non mentioning of .12.bore shot gun in the F.I.R. True that Sher Nawab P.W.2 in his F.I.R. has stated that the accused were armed with Kalanshnikov but this one omission, in our estimation, cannot be declared to be fatal to the C prosecution case because it would be unfair to expect an eye-witness to reproduce the occurrence with a photo-genic memory. It is in line with the natural course of events that the complainant having seen Kalashnikov in the hands of the majority of the assailants might have omitted to note the exact nature of the weapons in the hands of the appellant. There is yet another important circumstance in this behalf in the shape of presence of 4 empty shells of .12 bore on the spot; because the complainant could easily manipulate to mention the shot gun because there was no hurry as police had arrived on the spot. This circumstance speaks volumes for truthful version given by Sher Nawab P.W.2 in the F.I.R. and the honest investigation by the police. The prosecution case has been supported by two eye-witnesses named Sher-Muhammad P-W.5 and Sher Ahmad P.W.6. A perusal of the statements of these two eye-witnesses vividly indicates that they have given a coherent and consistent version of the occurrence and they have not been shaken on single material particular through cross-examination To our mind, Sher Muhammad P.W.2 has been fully supported by these two witnesses and there was no need for repetition through Mr. Nawab eye-witness. The prosecution is not required by law to produce each and even person who had witnessed the occurrence.

11. We have given our anxious mind to the record of the case. The occurrence took place at 11-00 hours while the report was lodged at 16-30 hours. This time appears to be reasonable in view of the distance between the scene of occurrence and the police station which has been mentioned as 37/38 kilometres. The complainant and the deceased are the nephews of the appellant, and therefore, we do not find any reason for false implication or substitution. We are also convinced regarding the motive because in the backward agrarian society the sale/purchase of land mostly acts as motive for such offences. The appellant was arrested close to the spot armed with a shot gun which fact is further supported by the recovery of four empties of .12 bore shot gun together with the positive report of Forensic Science Laboratory.

12. The old age of the appellant is of no avail to him because his participation in the crime is evident from the injury on his person and his report against the complainant party with the police. The appellant alongwith his son has mercilessly murdered three real brothers for the sake of piece of land. Therefore we are not impressed with the arguments that the appellant was unable to participate in the crime due to old age, or in the alternative, he deserves any leniency on account of his old age. We cannot refrain ourselves I, from holding that leniency has already been shown to him by the trial Court by not visiting upon him the normal penalty of death. To conclude we are of the firm view that the prosecution has successfully brought home charge to the appellant and the learned trial Court has correctly convicted and sentenced him. Therefore, we do not find any merit in this appeal and

13. Before parting with these lines, we want to clarify a legal position vis-a-vis the demand of compensation amount under section 544-A, Cr.P.C. because the learned trial Court has ordered the appellant to suffer six months' rigorous imprisonment in case of default of payment of compensation. On plain reading of section 544-A, Cr.P.C., it is clearer than crystal that the amount of compensation is recoverable as arrears of land revenue and therefore, the default in its payment shall entail only six months' simple imprisonment. However, this would not absolve the convict from the payment of the said amount because the State is responsible to recover the amount of compensation as an arrear of land revenue from the movable and immovable property of the convict. N.H.Q./299/P Appeal dismissed.