2000 P Cr (PLP)

SARDAR MUHAMMAD RAZA, J.

Hameedullah son of Saadullah resident of Mohallah Rustam Khel, Mardan, alongwith his co accused Nowsherwan was tried under section 302/324/34, P.P.C. for the murder of one Mst. Yasmin with reference to F.I.R. No.214, dated 18-4-1993 of Police Station Takhat Bhai, by learned Additional Sessions Judge, Mardan .at .Takht Bhai. Through judgment, dated 6-11-1994 the learned Additional Sessions Judge acquitted Nowsherwan but convicted Hameedullah and sentenced him under section 302(c), P.P.C. to imprisonment already undergone (reported to be fifteen months) and also to the payment of Rs.1,50,000 as Diyat to be paid to the children of the deceased excluding the share of Muhammad Zafar, the husband.

2. Mst. Humaira and others, the legal heirs of Mst. Yasmin have filed a revision petition for the enhancement- of sentence of Hameedullah challenging that the conviction recorded under section 302(c), P.P.C. was wrong and that it should have at least been passed under section 302(b), P.P.C. They, however, did not challenge the acquittal of Nowsherwan.

3. On the other hand, Hameedullah convict has filed Criminal Appeal No.305 of 1994 against his conviction which being subsequent in time to the instant criminal revision, shall be decided through this single judgment.

4. The detailed background of the occurrence is that Muhammad Zafar son of Abdul Ghafoor of Rustam Khel, Mardan, the complainant, alongwith his wife Mst. Yasmin on 18-4-1993 had gone to Arbi Bandha to condole the death of a child Yasin son of Aurangzeb who was a relative and who had died about one week prior to the occurrence. After such condolence, both the husband and wife alongwith Kalam Bacha and Izhar Ali started back in a pick-up No.DNA 7003 towards Sri Behlool.

5. When the pick-up reached Arbi Bandha Khawar (dry Nulla) the convict Hameedullah and his companion Nowsherwan were seen duly armed with fire-arms. They signalled the pick-up to stop and the driver responded to the signal. Hameedullah appellant opened fire at Muhammad Zafar complainant and his wife. The husband escaped unhurt but the wife was hit somewhat above the left ear. The bullet pierced through the brain and exited from above the right ear. The lady died on the spot. The motive for the occurrence is alleged to the effect that Hameedullah -was the sister's son of the complainant and had been demanding his mother's share in the property from his maternal-uncle Muhammad Zafar.

6. The occurrence had taken place at 17-30 hours whereafter the pick up was rushed to the Civil Hospital, Mardan, where Muhammad Zafar complainant within thirty minutes of the occurrence lodged a report at 18-00 hours before Abdul Ghani, A.S.-I., reduced in the shape of Murasila Exh.P.A./1 subsequently incorporated into F.I.R. No.214 at Police Station Takht Bhai.

7. Hameedullah absconded after the occurrence and after three months, he surrendered on 19-7-1993. During trial the companions in the pick-up namely Kalam Bacha and Izhar Ali were examined as eye-witnesses while Muhammad Zafar complainant was abandoned having been won-over. The prosecution relied upon the ocular testimony of two witnesses supported by a promptly lodged F.I.R. within thirty minutes after covering a distance of 12/1.3 kilometers. It was alleged to be a broad daylight occurrence where Hameedullah was identified by the complainant as well as by the witnesses who were related to each other and had no. enmity with Hameedullah at the time of occurrence so as to exclude the possibility of false charge. The testimony was further claimed to have been supported by the post-mortem report, the recoveries of empties of .30 bore from the spot and the unexplained abscondence of Hameedullah. .No stress was made qua the co accused Nowsherwan either by the prosecution or by the legal heirs of the deceased.

8. The learned trial Court agreed with the above claim of the prosecution but the conviction aforegaid was recorded on the ground that Muhammad Zafar complainant by not appearing in Court seemed to have compromised the matter and to have waived his right of Qisas. Inferring the itself is sufficient to prove the prosecution case, and the same was never shattered in the crcas-examination.

15. The next objection of the learned counsel was that the motive is not proved because complainant Muhammad Zafar'who alleged the motive in the F.I.R. has not been produced. It is already clear that Muhammad Zafar was won-over and was rightly abandoned by the prosecution Anyhow, thefactum of recording of F.I.R. and that said F.I.R. was lodged by Muhammad Zafar is proved through the statement of Abdul Ghani, A.S.-I. as well, who recorded the Murasila and who had no axe in his own to grind. We are also alive to the matter that the motive in the instant case is not even necessary to be proved because had there been no motive, a real maternal-uncle would not have charged the respondent-accused Hameedullah. No murders are committed without motives particularly when a close relative charges another close relative.

16. It has come in the judgment of the trial Judge that Muhammad Zafar complainant has stated that he had charged the respondent at the instance of the relatives of the deceased lady. About these remarks of the learned trial Judge, there is not an iota of evidence on the judicial file. We believe that some statement under section 164, Cr.P.C. of Muhammad Zafar complainant is relied upon to such effect but no such statement can be relied upon unless Muhammad Zafar appears in Court to confirm the same and to depose accordingly. We are convinced that any such statement of Muhammad Zafar under section 164, Cr.P.C. is neither admissible nor true because it was obtained after when he had been won-over. It is false because it is the statement, if at all, of a dishonest man who being an eye-witness absolves the E real culprits and involves someone at the instance of the others. The conduct of Muhammad Zafar in the instant case was not up to the mark and becoming of a conscientious man.

17. The next weakness in the prosecution case is pointed out qua the non-production of Raza Khan, the driver of the pick-up. The learned counsel for the respondent- alleged that this Raza Khan driver was examined under section 164, Cr.P.C. but still abandoned. Such statement was even read out in the Court. It is quite interesting to note that the defence mostly relies upon such statement under section 164, CrY.C., the deponents whereof have never been produced in Court: Anyhow, for the sake of the satisfaction of defence, we would say that the occurrence is even proved from the statement of Raza Khan driver under section 164, Cr.P.C. read out in the Court with clarity of all details except that Raza Khan driver did not identify the assailants. It is but natural because he was a stranger. This factum we have mentioned and the statement we have referred to only to appreciate that it never went against the prosecution and hence Raza Khan was rightly abandoned either as won-over or as unnecessary because both the eventualities could be rightly confronted.

18. The next objection is to the effect that no bullet marks were found on the vehicles which rendered the case as doubtful. We do not agree to this minor omission because it could have been a laxity on the part of the Investigating Officer who failed to go into minute details. Such minor omission cannot lead to discarding the otherwise confidence inspiring evidence of the eye-witnesses.

19. Last was the objection that the case is not proved because of the non-appearance of Muhammad Zafar complainant. It has already been discussed as to what were the circumstances that Muhammad Zafar did not F appear or had been won-over. His abandonment does not affect at all the case of the prosecution because it is fully proved by P.W. Kalam Bacha,and P.W. Izhar Ali. '

20. Consequently, Criminal Appeal No.305 of 1994 of Hameedullah is hereby dismissed, the instant revision petition converted into appeal is hereby accepted: The conviction of respondent Hameedullah is altered from section 302(c), P.P.C. to section 302(b), P.P.C. and upon such conviction he is hereby sentenced to imprisonment for life and further to pay a sum of G Rs.100,000 (one hundred thousand) as compensation under section 544-A, Cr.P.C., in default of payment whereof, he shall suffer further imprisonment for six months which shall run consecutive to the main sentence. This imprisonment in default of payment of fine shall be in addition to the mode of recovery provided in the section itself. Respondent Hameedullah is taken into custody to serve the sentence awarded today. N.H.Q./58/P Order accordingly.