IJAZ-UL-HASSAN KHAN, J.---By this judgment, we propose to dispose of the following two matters as these arise out of the same judgment dated 4-3-2004 delivered by learned Sessions Judge, Tank:--
(i) Attaullah v. The State and Fazlur Rehman (Criminal Appeal No,3 of 2004) and
(ii) Fazlur Rehman v. Attaullah and others (Criminal Revision No,8 of 2004).
(iii) Attaullah appellant in the above-mentioned appeal has assailed the judgment by which he was sentenced to imprisonment for life as 'Taazir' and to pay Rs,5,00,000 (five lacs) as compensation to legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment of compensation, to undergo further imprisonment for six months. The benefit of section 382-B, Cr.P.C. was extended to the accused.
2. Fazlur Rehman complainant through Criminal Revision has sought the enhancement of sentence awarded to Attaullah appellant.
3. Brief facts of the case as narrated in the F.I.R. lodged by complainant Fazlur Rehman P.W. are that on the fateful day i.e, 23-7-2000 at 9-30 a.m. Sakhi Jan deceased was playing cricket in a vacant plot owned by Turkistan at Rodi Khel. P.Ws. Fazlur Rehman and Muhammad Ayub, brothers of the deceased, were also watching the game. In the meanwhile, Attaullah son of Ghulam Haider, resident of Kot Pathan, Tank, brother of Turkistan duly armed with Kalashnikov arrived there and started altercation with the deceased. He opened fire with which the deceased was hit, fell on the ground and died instantaneously. After accomplishing the mission, the accused managed to run away ffom the spot. Explaining the motive, it was mentioned that .accused was in pursuit of having friendly relations with the deceased for immoral purpose and the deceased was not willing to it on account of which accused was nourishing grudge against the deceased.
4. On getting information about the occurrence and arrival of a dead body to Civil Hospital, Tank, A.S.-I. Haroon ur Rashid (P.W.10) proceeded to the hospital, recorded the report of Fazlur Rehman complainant in the shape of Murasila Exh.P.A.1 and dispatched the same to Police Station, Tank for registration of the case. He also prepared injury sheet Exh.P.W.10/1 and inquest report Exh.P.W.10/2 of the deceased and dispatched the dead body to the mortuary under the escort of Constable Said Hassan for post-mortem examination. After completing these formalities, A.S.-I. Haroon ur Rashid along with the complainant set out to the spot and on reaching there prepared site-plan Exh.P.B. at the instance of complainant and other eye-witnesses. He secured blood-stained earth P.1 from the spot, recovered four empties of .222 bore from the place of accused Attaullah, P.2, one bat of cricket, P.3, three wickets, P.4 and one cricket ball, P.5 vide recovery memo. Exh.P.C. in presence of Said Khan and Abdul Ghafoor, F.C. P.Ws. He sent the blood-stained earth to F.S.L., Peshawar, recorded statements of P.Ws., initiated proceedings against the accused under sections 204/87, Cr.P.C. and after completion of investigation, handed over the case file to S.H.O. Hashmat Ali Shah Zaidi (P.W.11) who submitted challan against the accused under section 512, Cr.P.C. on 29-8- 2000. D.S.P. Abdul Aziz (P.W.9) arrested the accused on 4-1-2002 and submitted challan against him on 8-1-2002 to face trial.
5. Dr. Muhammad Hashim (P.W.8), the then Medical Officer, Civil Hospital, Tank on 23-7-2000 at about 9-45 a.m. conducted post-mortem examination of the deceased and noted the following:- WOUNDS: (1) One F.A. wound of entry 1/2 c.m. in diameter on the front neck.
(2) One F.A. wound of exit above the right ear 1-1/2 c .m.in diameter.
CRANIUM: Skull, membrane and brain were injured.
THORAX: Larynx and trachea injured. Blood vessels also injured.
STOMACH: Healthy and contained semi-digested food material.
OPINION: In the opinion of doctor, the cause of death was injury to vital organs i.e, right ceroted, trachea, and base of brain, leading to shock and death.
Probable time between injury and death: 10-15 minutes. Between death and p.m.:30-45 minutes.
6. The prosecution in order to prove its case has produced eleven witnesses including doctor, Investigating Officer and other relevant witnesses.
7. After closing the prosecution case, the appellant was examined under section 342, Cr.P.C. who denied and controverted the allegations and pleaded his innocence. The appellant in answer to question as to what is his statement and why he is charged, replied as under:-- "I am innocent and falsely charged. The alleged natural witnesses namely Kamran, M. Iqbal and Bilal who were playing cricket along with the deceased at the spot, were abandoned by the prosecution although according to the prosecution they had witnessed the occurrence. It has come on record from the mouth of the complainant that P.Ws. Kamran and Bilal are close relatives.
The presence of all the three P.Ws. had been shown in the site-plan indicating their presence at the spot at the crucial time but they were not brought in the witness-box and were abandoned. The inference would certainly be against the prosecution that had they been produced, they would not have supported the prosecution case. Complainant and his brother P.W. Ayub have been produced who are interested chance witnesses being brothers of the deceased. The investigation of the case was conducted dishonestly. The statement under section 164, Cr.P.C. of P.W. Bilal and Kamran are in the hands of the Investigating Officer and not written by the Judicial Magistrate, who has only signed the same. The report of the complainant was recorded after the spot inspection and preliminary investigation none from the independent quarter has come forward to support the prosecution case. According to the complainant, the land in which the cricket was being played had a crop in it. As such the cricket cannot be played in it. The prosecution version is further denied by the indirect evidence and no convincing motive has been proved. According to F.I.R., there was no previous enmity between the parties but later on motive was improved and it was stated at the trial that the accused was after the deceased to keep him as his boy friend. In the same breath the complainant stated that altercation between the accused and the deceased started because the fields in question belonged to the brother of the accused, who had asked the deceased as to why they were playing cricket in it. I am old man of over sixty years, and have grown up children, in all I have six children, my elder son has died. I am innocent and have falsely been charged. The instant occurrence is an unseen one and is replete with grave doubts."
The accused did not opt to appear as his own witness as required under section 340(2), Cr.P.C. and also did not produce any defence evidence.
8. After taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, learned trial Court convicted and sentenced the appellant as mentioned above.
9. Appearing on behalf of the appellant Mr. Gauhar Zaman Kundi, Advocate vehemently contended that conviction and sentence awarded by the trial Court is against law, available material and is violative of the principles governing criminal dispensation of justice; that the testimony of complainant Fazlur Rehman (P.W.6) and his brother Muhammad Ayub (P.W.7) is replete with grave doubts, dishonest improvements and on the face of it rings to be the version of interested and partisan witnesses; that the ocular testimony is not in tune with medical evidence and moreover, the ocular version contradicts the site-plan position rendering the entire story of prosecution as fabricated, tailored, untrustworthy and profoundly incredible; that admittedly preliminary investigation having been conducted by the Investigating Agency prior to lodging of report, not only makes the report belated one and an outcome of premeditation and pre-consultation, but it also adversely reflects upon the credibility of Investigating Agency as well because in such-like situation, the entire investigational exercise becomes partial and dishonest. The learned counsel maintained that the F.I.R. being the basic document in a criminal case is vested with much greater sanctity but where it was admittedly recorded after preliminary investigation, it loses its sanctity and even the probative worth and as such becomes a suspected document rather than the one giving a natural, spontaneous and straight-forward account of the occurrence. The statement of P.W. Fazlur Rehman is quite clear in this behalf who unreservedly admitted in his cross-examination that the police first prepared injury sheet, inquest report, dispatched the dead body to the mortuary and thereafter recorded his report; that prosecution has failed to establish abscondence of the appellant on trial and even otherwise abscondence alone cannot be treated as an evidence sufficient to warrant conviction, moreso when abscondence is no more than a corroborating circumstance only when the prosecution story is worthy of credit and the prosecution is able to prove its case to the hilt at trial. This being the position in the instant case, the alleged abscondence could neither be treated as factor against the accused nor it could weigh in favour of conviction against him in any manner and that failure of the Investigating Agency to send the alleged four crime empties for examination/test to F.S.L. adversely reflects upon the prosecution case and thus in such like situation, it is open to doubt as to whether all these empties were fired from one or different weapons.
10. Mr. Salimullah Khan Ranazai, Advocate appearing for the State assisted by Mr. Abdul Karim Khan Marwat, Advocate for the complainant, on the other hand, defended the impugned judgment qua conviction of the appellant and submitted that in this case there was over-whelming evidence led by the prosecution. against the appellant which conclusively proved that the appellant was guilty of the offence alleged against him and that the learned trial Judge had no justification to take a lenient view and feel hesitation to award the normal penalty of death to' the appellant.
11. We have considered the respective arguments advanced by learned counsel for the parties and have examined the entire material placed on record carefully with their assistance. We have noticed that the prosecution has produced eleven witnesses to establish its case. The ocular version has been narrated in its material particulars by complainant Fazlur Rehman and his brother Muhammad Ayub P.Ws. The occurrence in this case took place on 23-7-2000 at 9-30 a.m. and the matter was reported promptly at Civil Hospital, Tank at 1015 hours. The eye-witnesses had established their presence at the place of occurrence through unimpeachable and trustworthy evidence and their deposition could not be shattered despite extensive cross-examination.
Learned counsel for the appellant has submitted that on the one hand the witnesses are interested and partisan whereas on the other, there are major contradictions and inconsistencies in the statements of prosecution witnesses which has rendered the prosecution case highly doubtful. The submission of the learned counsel is misconceived. No doubt it is true that complainant Fazlur Rehman and Muhammad Ayub P.Ws. are real brothers of Sakhi Jan deceased but it is equally true that mere relationship between the witnesses or with the deceased is no ground to discard their evidence unless the witnesses have some motive or cause to falsely implicate the accused. In this case, the witnesses are natural and have no cause or motive to falsely implicate the accused or substitute him for the real culprit. Both the eye-witnesses have fully supported the prosecution version and charged the accused for the guilt. Presence of these witnesses with deceased at the time of occurrence has gone unchallenged. Neither they have exaggerate the facts nor have made any improvements to support the prosecution case, making their testimony unworthy of credence.
No doubt there are some minor inconsistencies in the statements of these witnesses but the explanation offered by learned State Counsel is plausible and we are persuaded to agree with his submission that the inconsistencies in the statements of P.Ws. are not on material points and are bound to occur in the natural course, when the statements of witnesses have been recorded after about three years of the incident. These appear to be the result of betrayal of the memory for the simple reason that the incident took place on 23-7-2000 and statements were recorded on 12-6- 2003. Human memory is bound to betray in matters of details. Minor discrepancies in the statements of witnesses show that they were not tutored and deposed in the natural ways and in the ordinary course the minor inconsistencies occur due to difference in perception, mental faculty of retention of facts and capacity to narrate the details is very natural. Both the witnesses are fully consistent on all material particulars and have not waivered at all. The report has been made with promptitude without any premeditation or consultation. The submissions of learned counsel for the appellant that P.Ws. Kamran, Muhammad Iqbal and Bilal have been withheld without any justification; that the report has been recorded after preliminary investigation and that failure of the Investigating Agency to send the alleged four crime empties for examination/test to Forensic Science Laboratory adversely reflects upon the prosecution case, are devoid of force. P.Ws.
Kamran, Muhammad Iqbal and Bilal have been abandoned for valid reasons. No prejudice seems to have been caused to the appellant. It is the quality and not the quantity of evidence which matters in such like cases.
12. Another important circumstance which has immense corroborative value is the absconsion of the appellant. It may be noticed here that the incident having taken place on 23-7-2000, appellant was arrested on 4-1-2002. This piece of evidence was specifically put to the appellant but he could not offer any tenable explanation whatsoever. When the abscondence is proved on record and if no explanation which appeals to reason is put forward by the accused, then this circumstance coupled with the evidence on record weighs rather heavily against the accused as held in Mst.
Roheeda v. Khan Bahadur and another 1992 SCM R 1036 and Amanullah Khan and 3 others v. The State 2002 PCr.LJ 1934 Lahore.
13. Appellant was nominated accused in promptly recorded F.I.R. The motive has been alleged and proved against him. The complainant and his brother have no previous enmity with him for his false implication or substitution by letting off the real culprit. The prosecution case against him is established by the statement of the complainant corroborated by his brother.
The prosecution case has further been corroborated against appellant by his abscondence. The ocular account has been further corroborated by medical evidence, motive and recoveries. There is no doubt that appellant is real culprit of commission of heinous offence and he is responsible for committing murder of Sakhi Jan deceased, a young boy of 18/19 years of age.
14. In the result and for the foregoing reasons, promptly lodged F.I.R. of a broad-daylight occurrence with specific role assigned to the appellant and the medical evidence which is completely in harmony with the ocular version as well as recovery of incriminating articles from the scene of occurrence coupled with noticeable abscondence of the appellant, amply support the case of the prosecution. There is no merit in this appeal. The same is dismissed.
15. There is no doubt that where an offence is proved, it has to be met with the maximum sentence provided therefor. However, there is no yardstick to restrict or curb the discretion of the trial Court while passing the sentence. It is the circumstances of each case which justify the severity or leniency in passing the legal sentence. In this case, learned trial Judge has declined to award capital punishment to the appellant for valid reasons. We see no good ground to take a contrary view and enhance the sentence of the appellant. The Criminal Revision No,8 of 2004 is destitute of force which is also dismissed.