1989 P Cr (PLP)

7. Habibullah deceased died of a fire-shot is not any more in dispute. Nonetheless we have in this regard the evidence of Dr. Shamsuddin Khan (P.W.2) who stated that on 9‑1‑1984 at 10‑15 a.m. the dead body of Habibullah deceased aged about 16/17 years was brought alongwith his injury sheet and inquest report for post‑mortem examination and' on external examination he found as follows:‑‑ (1) Seven fire‑arm injuries in front of the right chest at the pictorial region entrance shown m the diagram each wound 3 m.m. in diameter and rounded in outline and deep m nature. Margins not charred. (2) One fire‑arm injury at the front of the right shoulder 3 m.m. in diameter, rounded margins which are not charred; it is deep. (3) Right clavicle is fractured. (4) 3rd, 4th, 5th ribs are fractured in the front of the right side of the chest. (5) Three fire‑arm injuries at the back (exit) of the right scapula shown in the diagram each 3 m.m. in diameter rounded margins no charring, no signs of inflammation and are deep in nature. (6) Four pellets extracted from the back near the left scapula, which were lying subcutaneously shown in the diagram. (7) Four fire‑arm injuries two at the root of the left little finger and two at the terminal phalanx of the same little finger.

8. On internal examination he found as follows: Thorax Right clavicle fractured, 3rd, 4th, 5th ribs in front of the right chest fractured with the external wound mentioned in diagram. Left pleaurae healthy, right pleaurae ruptured with the cavity filled with clotted blood. Right lung injured and there is clotted blood in the cavity. Blood vessels ruptured m the right side of the muscles; bones and joints. Fire‑arm injuries at the front of the right chest (entrance) and also at the back right side (exit) mentioned in the diagram. Right clavicle 3rd, 4th, 5th right .ribs fractured. According to Doctor Shamsuddin Khan, the cause of death of the deceased was fire‑arm injury.

9. On the complicity of the respondents in this crime the prosecution examined before the learned trial Judge ocular evidence of complainant Hidayatullah and P.Ws. Muhammad Jan and Obedullah. These three witnesses when examined in the Court fully supported the prosecution case and stated that on eventful day they had seen Muhammad Zubair accused‑respondent firing a gun shot at the deceased at the spot as a result of which the deceased fell down and died on his way to the hospital. The learned trial Court has disbelieved the evidence of these three eye‑witnesses in particular and others in general. The learned trial Judge reached the conclusion that it was an un-witnessed occurrence. He was also of the view that the evidence of prosecution witnesses was wrought with material contradictions. These are to the effect that according to the complainant the report had been lodged at the spot, while according to Muhammad Amin, Investigating Head Constable (P.W.15) it was scribed in the hospital. Further that `according to one P.W., P.W. Muhammad Jan was not chased by Jehangir Khan (P.W.) but his statement was refuted by P.W. Jehangir Khan, who is disinterested witness'. The learned trial Judge also concluded that motive for the crime was not established and, in any case, it was not clear to him as to why the complainant was spared who was comparatively older in age than the deceased. Lastly, there was discrepancy on the point as to whether Muhammad Zubair accused had fired one or two shots.

10. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate‑General, contended that the F.I.R. in this case had been promptly lodged and that the version appearing therein was fully substantiated by the ocular as well as circumstantial evidence. The Assistant Advocate‑General submitted that view of the learned trial Judge that it was an un-witnessed occurrence was not warranted by the fact that it had taken place in broad‑daylight in the street of village Panyala near the local High School, moreso when ocular account of occurrence had been furnished by Muhammad Jan (P.W.11) who is quite disinterested. He also argued that notwithstanding their relationship with the accused the testimony of Hidayatullah and Obedullah P.Ws. is fully corroborated by two pellets extracted from the wall of the school, two cardboard discs recovered from the spot and, the abscondence of Muhammad Zubair accused‑respondent.

11. As against this, the arguments before us on behalf of the accused‑ respondents are in line with the aforesaid points on which the learned trial Judge was inclined to acquit the accused‑respondents. It was submitted that the mainstay of the prosecution is the ocular evidence but the presence of the ocular witnesses is itself not free from doubt for many reasons. In the first place, Hidayatullah and Obedullah P.Ws. besides being highly interested were just chance witnesses while Muhammad Jan P.W. was not only a fast friend of the deceased but having sworn in an affidavit Exh.D.C. before the Oath Commissioner to the effect that he had not seen anyone firing at the deceased was not worthy of credence. The learned counsel further maintained that the ocular evidence of highly doubtful veracity could not be corroborated by the recoveries as well as the alleged abscondence of the accused‑respondents.

12. The learned trial Judge, as stated earlier had disbelieved that ocular evidence of P.Ws. Hidayatullah and Obedullah on two‑fold grounds; firstly, that they were closely related to the deceased and secondly, that their claim of being present at the time and place of occurrence was highly doubtful particularly when Muhammad Rafique (P.W.7), Jehangir Khan (P.W.9) who besides being disinterested witness having reached the spot soon after the occurrence, have not supported _the claim of these P.Ws. The learned trial Judge seems to have been influenced by the affidavit Exh.D.C. of Muhammad Jan P.W. It is true that Hidayatullah (P.W.) is the brother of the deceased whereas Obedullah is the husband of his paternal‑aunt. Nevertheless this relationship. by itself was not sufficient to discard their evidence. It is a matter of common experience that now adays impartial and independent persons do not come forward to give evidence against the criminals particularly in cases involving capital sentence for fear of reprisals at their hands. It is, therefore, not unreasonable to expect only the relatives to come forward to give evidence. The evidence of such witnesses is, 1A however, believed if it is corroborated in material particulars by some independent, direct or circumstantial evidence and is not otherwise unbelievable. In this context, we would refer to the case of State v. Nuran Shah etc. P L D 1967 Pesh. 274 wherein the learned Judges emphatically laid down as follows:‑ "In a murder case where there is enmity between the parties and the eye witnesses are related to the deceased, the statements of such eye witnesses require corroboration. However, for corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. Where the accused had absconded from the village for about 3 days after the murder was committed, it was held that their abscondence from the village corroborated the statements of the eye‑witnesses regarding their guilt." Their Lordships of the Supreme Court in Muhammad Ali v. The State 1985 S C M R 203 were also pleased to observe that there is no inflexible rule that the statement of an interested witness can never be accepted unless corroborated and that in any case corroboration is available to the testimony of the wife of the victim in that case from the medical evidence and the evidence of motive and abscondence. In the instant case too, the testimony of Hidayatullah complainant and Obedullah P.W. qua at least Zubair accused‑respondent is sufficiently corroborated from the medical evidence; the recoveries of two pellets extracted R from the school wall; the two cardboard discs picked up from the spot and from the abscondence of the accused‑respondent from 9‑1‑1984 to 17‑9‑1984.1 Notwithstanding the affidavit Exh.D.C. sworn in by Muhammad Jan (P.W.11) the evidentiary value whereof is not above board, his testimonyin material particulars has gone unchallenged. Testimony of Jehangir Khan (P.W.9) on the point of presence of Muhammad Jan (P.W.) at the time and place of occurrence is beyond doubt. The testimony of Muhammad Jan P.W. on the crucial point of having seen Muhammad Zubair accused‑respondent firing at the deceased could not be shattered despite crude attempts like filing of affidavit Exh.D.C. He has absolutely disowned his statement in the affidavit Exh.D.C. that he had only heard a report of fireshot which was directed from an orchard and that he had not seen anyone firing at the deceased. We, therefore, seen no reason to disbelieve or doubt the evidence of Muhammad Jan (P.W.) which substantiates the evidence of Hidayatullah and Obedullah (P.Ws.). In any case, corroboration is available to p their testimony from the recoveries of pellets and cardboard discs, the medical evidence and abscondence. The only fire‑arm inlet injury has been attributed to Muhammad Zubair accused‑respondent and thus his involvement in the crime is not open to doubt and as such he is liable for the murder of the deceased.

13. Finally, we find that none of the three witnesses namely, HidayatullaIr4 Obedullah and Muhammad Jan had any animus or enmity to falsely implicate) Zubair accused‑respondent, neither the accused‑respondent had alleged any such enmity. The only reason he has given against the complainant is that he suspected the said accused to have got the animus to kill the deceased on the ground of the latter's liking of the former. Hidayatullah P.W. has categorically denied these suggestions. The evidence of Hidayatullah and Obedullah P.Ws. substantiates the motive part of the prosecution case. The learned counsel for the accused‑1 respondents had attacked it as far‑fetched and improbable. Conceding for a while to the inadequacy of the motive, still it would not militate against the ocular evidence. Their Lordships of the Supreme Court in State v. Rab Nawaz P L DI 1974 SC 87 had observed that:‑‑ "... .. in criminal cases motive more often than not remains shrouded in uncertainty. To the complainant it is generally a matter of speculation, for it is a fact within the special knowledge of the deceased. Even motiveless crime is not unknown. Therefore, the mere fact that the prosecution case as to motive has been disbelieved by the Courts below is no reason for disbelieving direct evidence on the main incident, which has to be judged on its own merits, and if such evidence is creditworthy, it can form a valid bass for conviction obscurity of motive notwithstanding." A Division Bench of this Court in Azeem Khan v. The State 1979 P Cr. L J 265 while borrowing the monumental remarks of Lord Chief Justice Campbell that adequacy of motive is of little importance made the following observations: "Therefore, we are of the view that when there is other evidence of guilt of an accused person, the existence of a motive is circumstance corroborative .of the case against him. But motive is a fact which is within the personal knowledge of the person doing the act and which no human being but the party himself can divine. Thus, failure to discover the motive for an offence does not signify its non‑existence; and failure to produce of evidence of motive though it may be adduced with weakness of the whole body of proof, is not fatal, as, in law, proof of motive is no more necessary than the proof of any other relevant fact."

14. Their Lordships of the Supreme Court in Farah Naz v. The State 1984 S C M R 646 have laid down that law does not place any invariable duty on prosecution to prove motive and its failure to do so would be immaterial if direct and reliable inculpatory evidence is otherwise available. This view was reaffirmed in Naseer Muhammad v. The State 1985 S C M R 60 when their Lordships of the Supreme Court held that absence of motive would be immaterial if ocular evidence was corroborated by medical evidence and the abscondence of the accused. Respectfully following the dictum of the Division Bench of this Court in Azeem Khan's case and that of the Supreme Court in the cases of Rab Nawazl and Farah Naz and Nazeer Muhammad, we have no hesitation to hold that in view of the ocular evidence of the aforesaid three P.Ws. and the medical evidence which is amply corroborated by the abscondence of Muhammad Zubair accused‑respondent the absence of motive would be of no consequence.

15. The star witness of the prosecution, namely, Muhammad Jan, however, has said not a single word about the presence of Bashir Ahmad accused respondent on the spot at the time of occurrence. Consequently, the order of acquittal recorded m favour of Bashir Ahmad accused does not call for N interference. Order of acquittal of Bashir Ahmad accused‑respondent is, therefore, maintained.

16. In the circumstances, the prosecution case stands amply established against Muhammad Zubair accused‑respondent and his acquittal has resulted in grave miscarriage of justice. Consequently, we accept the State Appeal, set aside the acquittal of Muhammad Zubair accused‑respondent and convict him under section 302, P.P.C. The motive for the offence remains shrouded in mystery. In the circumstances in our view ends of justice will be fully met if he is awarded lesser penalty provided by law. Accordingly, we sentence him to imprisonment for life and fine of Rs.10,000 or in default to undergo further rigorous imprisonment for three years. He shall also pay Rs.10,000 as compensation to the heirs of the deceased or in default shall undergo simple imprisonment for six months. N.H.Q./870/P Appeal accepted.