1977 SCMR 175 (PLP)

MUHAMMAD YAQUB Ali, J.‑A Division Bench of‑ the Peshawar High court has, by their judgment and order dated the 20th November, 1972, on appeal upheld the conviction and sentence to imprisonment for life awarded Ahmad Nisar, appellant, under section 302, P. P. C. by the Additional Sessions Judge, Kohat. Leave to appeal was granted on 14th December, 1972 to consider the plea that conviction was based entirely on the statement of P. W. 8 Ikramullah, who is a child witness aged about 12 years and closely related to the deceased. There was no other evidence to corroborate the testimony of this witness. It was also urged that the statement of Ikramullah suffers from certain infirmi ties and contradictions which made his testimony untrustworthy. Mohabat Ali, deceased, who was closely related to the appellant worked as a Cashier in the Local Branch of Standard Bank, Kohat. On the morning of 25th July, 1969 he was, at about 7 a.m. going to the Bank on a scooter when the appellant accompanied by Amir Muhammad (acquitted by the High Court) stopped him near the railway crossing. As soon as Mohabat Ali got down the scooter, the appellant, armed with a Tamancha (a country‑made pistol with a long barrel which fires '12 bore cartridges) fired a shot at him. Mohabat Ali was hit on the head and fell down mortally wounded. Noor Muhammad, a servant of the father of the appellant, who happened to be working in the fields nearby was the first to go to the house of Mohabat Ali and informed his mother P. W. 5 Mst. Kashmira Jan that his son was lying wounded by the fire‑arm near the railway crossing. Mst. Kashmira Jan rushed towards the spot and on the way met her brother Nadir Shah, father of Amir Muhammad (acquitted accused). On the way they met P. W. 6 Ikramullah son of Shahzad Mir, another brother of Kashmira Jan. He narrated to them the incident in which Mohabat Ali was injured. Ikramullah and Rizwanullah were playing in a bullock cart outside their house when they saw Mohabat Ali proceeding towards the city. As he reached near the railway crossing, the appellant accompanied by Amir Muhammad stopped him from proceeding further. The deceased got down from the scooter and proceeded towards the appellant when the latter fired at him from a Tamancha. Ikramullah and Rizwanullah saw Ahmad Nisar and Amir Muhammad running away towards north, the former carrying with him a Tamancha. Near the railway crossing they saw Mohabat Ali lying injured on the road. Mst. Kashmira Jan and Nadir Shah were soon joined by Shahzad Mir father of Ikramullah P. W.

6. Both the brothers helped Mst. Kashmira Jan in carrying Mohabat Ali to the Civil Hospital, Kohat, for treatment. The condition of Mohabat Ali became precarious when Mst. Kashmira Jan, accompanied by both Nadir Shah and Shahzad Mir went to Saddar Police Station, Kohat, and lodged there the first information report Exh. P. A. at 7‑30 p. m. i.e. within half an hour of the occurrence. The report was based on the facts disclosed to Mst. Kashmira Jan by Ikrarnullah P. W.

6. She added that her son was subjected to murderous assault by the accused on account of enmity which had developed between the two over the marriage of Mst. Sajida Begum to the appellant for whom the deceased was at first a suiter. Injuries suffered by Mohabat Ali were examined by P. W. 5 Dr. M_ Owais Khan. The Doctor found six entrance wounds 1/3" X 1/3" each on the occipital portion of the skull. The wounds were bleeding profusely and brain matter was oozing out through the wounds. Mohabat Ali died of these injuries on the same day. As mentioned earlier the only eye‑witness in the case was P. W. 6 Ikramullah. He was 13 years of age when examined in Court. Nothing useful was elicited in the lengthy cross‑examination by the learned defence counsel to discredit him on ground of tender age. We also find no infirmity or contradiction in his sufficient as was alleged before us when leave to appeal, was granted. It is incorrect that the conviction in this case is based entirely on the oral testimony of a single child witness. The ocular evidence furnished by Ikramullah was fully corroborated by the circumstances attending upon the crime. The appellant and the deceased were closely related. Nur Sher Khan was their common ancestor. He had two wives. Bahadur Sher was a son by the first wife while Ahmad Nisar, appellant, is the son's son of Bahadur Sher. Shahzad Mir, Nadir Shah and Mst. Kashmira Jan are the sons and daughter of Nur Shah by his second brother. Ikramullah (P. W. 6 is the son of Shahzad Mir while Amir Muhammad (acquitted accused) is the son of Nadir Shah. It has been mentioned above that both Nadir Shah and Shahzad Mir had accompanied Mst. Kashmtra Jan to the Civil Hospital and from there to the Police Station, Saddar, hohat. In their presence Mst. Kashmira Jan had lodged the first information report, Exh. P A, in which she named Amid Muhammad and Ahmad Nisar as the assailants of her son. It is not like that in their presence Mst. Kashmira Jan would have falsely implicated. If the accusation was false Nadir Shah and Shahzad Mir would not have allowed Kashmira Jan to lodge a report naming therein the appellant and Amir Muhammad as the culprits. Further P. W. 6 Ikramullah is the first cousin of Amir Muhammad and very closely related to Ahmad Nisar, appellant. It is true that the sister of Ikramullah was married to the deceased, but this circumstance furnishes no motive at all to 1kramullah to falsely implicate the appellant and Amir Muhammad, acquitted accused. Lastly both the accused absconded soon after the murder of Mohaba Ali. The occurrence took place on 25th July, 1969. The police made a search for them, but their whereabout could not be traced out. Proceeding under sections 87 and 88 of the Code were initiated against them and they were declared as a proclaimed offenders. Eventually they were arrested on 9‑9‑1970 and no reasonable explanation for this absconsion was given by either of them. It was contended by the learned counsel for the appellant that prosecu tion has failed to establish any motive on the part of his client to commit the crime. In his opinion the deceased would have felt aggrieved by the marriage of Mst. Safia to the appellant as he was the first suiter and not vice versa. The Courts below have placed no reliance on this part of the prosecution case and it will serve no useful purpose to enter into this controversy. (Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye‑witnesses if they be other wish reliable). It was further argued by Sh. Shaukat Ali, learned counsel for the appellant, that P. W. 6 Ikramullah had not seen the actual shooting and a number of witnesses who had arrived at the scene were not examined by the; prosecu tion. The substance of the testimony given by Ikramullah is that he saw the deceased going on a scooter towards the city; near the railway crossing he was stopped by the appellant ; thereafter he heard the report of a gun ;as he ran towards the spot he saw the appellant who was holding a Tamancha in his hand and Amir Muhammad (acquitted accused) running from the place of occurrence towards north. On reaching the railway crossing he saw Mohabat Ali lying injured by a gunshot. If these facts are believed no other inference is possible except that the appellant was the assailant of the deceased. As to the other persons not examined by the prosecution, it is in evidence that they arrived at the spot after the accused had decamped. Their evidence would not, therefore, have been of much consequence in the case. We thus find ourselves in agreement with the learned Judges of the High Court that the offence under section 302, P. P. C. was clearly brought home to the appellant and he has rightly been convicted and sentenced for it by the trial Court. Amir Khan, father of Mohabat Ali deceased, has applied for leave to appeal against .the order of the High Court by which Amir Muhammad was acquitted and for enhancing the sentence awarded to Ahmad Nisar to the extreme penalty of death. We have heard Mian Ziauddin Ahmad in support of the petition and find no sufficient grounds to interfere either with the order of acquittal of Amir Muhammad or with the quantum of sentence awarded Nisar. There is no evidence to show any common intention on to Ahma Ahmad the part of Amir Muhammad other than that he was accompanying Nisar when he stopped Mohabat Ali, deceased, and fired a shot from hi Tamancha. It is not shown that Amir Muhammad was holding the Tamanchal in his hand when he came to the spot accompanied by Ahmad Nisar accused. It is, therefore, possible that he took out the fire‑arm after he had stopped Mohabat Ali near the crossing and within a few seconds he fired the fatal shot, at him. In the circumstances it cannot be said that the order of acquittal passed by the High Court is wholly‑unreasonable or perverse to call for inter ference by this; Court. As to "the sentence awarded to Ahmad Nisar, accused, this Court does not ordinarily interfere in such matters. Both the appeal and the petition for special leave to appeal filed by Amir Khan, are for the foregoing reasons, dismissed. Appeal dismissed.