' FAZAL-I-HAQ ABBASI, J.--- Through this criminal appeal the appellants have impugned the judgment dated 15-12-2009 passed by Additional Sessions Judge/Izati Zilla Qazi-IV, Swat, whereby the appellants were convicted under section 302(b) P.P.C. And sentenced to imprisonment for life.
They were also directed to pay Rs,1,50,000 each as compensation to legal heirs of deceased or in dc fault to suffer further six months' S.I. Each. Habib Khan was also convicted and sentenced under section 13 A.O. To three years R.I. With a fine of Rs,3,000 or in default of payment of fine to further three months S.I. Sentences of imprisonment of Habib Khan were directed to run consecutively.
However, benefit of section 382-B, Cr.P.C. Was extended to them. Gul Hamm co-accused was acquitted of the charge by extending him benefit of doubt.
2. An occurrence took place on 4-11-2006 at 10-40 a.m., on the road near Utility Store Saidu Sharif, report whereof was lodged by Dost Muhammad Khan (P.W.1) on the same day at 11-00 a.m. In the Casualty Ward of Saidu Sharif. Hospital. Muhammad Tahir A.S.-I. (P.W.2), stated that he was present on duly in the casualty Saidu Sharif when complainant Dost Muhammad (aged 59/60) along with dead body of his son Taza Khan reported that his daughter Mst. Rawasia was married to Adalat Khan son of Khadim, while Nadia, sister of Adalat Khan was married to his son Taza Khan, who died due to hitting by aerial bullet about two years ago, he and Taza Khan were charged for her murder.
They had come to the Court to attend the date of hearing. Gul Haram, Adalat Khan and Haya Khan had also come, after change of date he alongwith his son Taza Khan, were going back, on foot to their house. Gul Haram Khan, Adalat Khan and Haya Khan were going ahead of them, when reached on the road near Utility Store Haya Khan caught hold of Taza. Khan while Adalat Khan pulled out pistol and fired one shot at Taza Khan with which he was hit on the head, received injury, fell down and died on the spot. Adalat Khan, Haya Khan while decamping were arrested by Police.
Motive for the offence was previous enmity of murder. Occurrence was stated to be witnessed by many others besides him. Report was recorded in the shape of. Murasila Exh. PA, complainant thumb impressed the same and was sent to P.S. For registration of case. He prepared inquest report Exh.P.W.M and injury sheet Exh.P.W.2/2 of the deceased and handed over to the Doctor for postmortem examination. Case was registered at 11-30 a.m. Vide F. I. R. No . 397 dated 4-11-2006 under sections 302/34, P.P.C. At Police Station Saidu Sharif by Shams-ud-Din A.S.-I. In the shape of Exh.PA/1.
3. Investigation was entrusted to Wazir Muhammad A.S.-I. (P.W.7); who after receipt of F.I.R.
Proceeded to the crime spot, prepared site plan Exh.PB at the pointation of the complainant, took into possession blood-stained earth P2 and an empty shell of .30 bore Exh.P3 from the spot through memo Exh.P.W.7/1 in presence of witnesses and sealed the same into parcels. He took into possession .30 bore pistol No,636, country made along with seven cartridges (P4) produced by Muhammad Ismail FC No,703, (P.W.6), who told that pistol was taken from Adalat Khan, sealed he pistol in parcel through memo Exh.P.W.6/1 in presence of witnesses. Police guard posted at National Bank also produced Adalat Khan and Hayat Khan already arrested, P.W.7 issued their card of arrest Exh.P.W.7/2. As the pistol was unlicensed, he added section 13 A.O. In the charge against Adalat Khan. He sent the pistol and empty shell to FSL through application Exh.P.W7/3, report of the Expert Exh.P.W.7/4 was received and placed on file by him on 6-11-2006, Gul Haram was arrested vide card of arrest Exh.P.W.7/8. He also sent the bloodstained articles to Laboratory vide application Exh.P.W.7/10 and placed on file report of Serologist Exh.P.W.7/11 and recorded the statements of P.Ws.
On 7-11-2006 recorded the supplementary statements of complainant wherein he explained that he has charged one accused in the name of Adalat Khan while his actual name is Habib Khan.
Statement of complainant was also recorded under section 164, Cr.P.C.
4. Investigating Officer also placed on the record copy of F.I.R. No,622 of 2004 regarding murder of Mst. Nadia and order sheet No,21 dated 4-11-2006 of the Court. After completion of the investigation case file was handed over to Gul Sanobar S.H.O. (P.W.5) for submission of complete challan, who filed the same in the Court for trial of the accused.
5. Case was entrusted to Additional Sessions Judge/Izafi Zilla Qazi-IV, Swat. Learned trial court after compliance of section 265-C, Cr.P.C., framed the charge sheet against the accused, recorded statements of eight P.Ws., statements of the /accused under section 342, Cr P.C. The accused pleaded innocence. None of the accused opted to produce defence evidence or to appear as their own witness under section 340(2), Cr.P.C.
6. Learned trial Court after hearing the arguments delivered judgment dated 15-10-2009.
7. Learned counsel for the appellants argued that complainant (P.W.1), being related to deceased and interested witness cannot be relied, upon. He contended that initially Adalat Khan was charged but later on was substituted by Habib Khan. He further contended that the crime articles i,e, pistol and empty shell were sent with delay of 14 days to the expert as such report of the Fire Arms Expert cannot be used against the appellants. He averred that motive, was not put to the accused in statement under section' 342, Cr.P.C., therefore, prosecution failed to prove the motive.
He submitted that recovery of empty shell was not mentioned in the F.I.R. As well as in the inquest report, therefore, the recovery of the same is doubtful. He also contended that there are contradictions in between the statements of P.Ws., therefore, the prosecution failed to prove its case beyond reasonable doubt. He argued that Gul Haram co-accused was acquitted by discarding the prosecution evidence, hence benefit of the same be also given to the appellants. He submitted that if the court comes to the conclusion that case is proved against Habib Khan then Hayat Khan be acquitted as he is only given the role of catching hold, as there was no need of catching hold in a case of fire arm injury and case against him becomes doubtful. Learned counsel placed reliance on 2003 PCr.LJ 981, 2007 M LD 1809, 2007 M LD 613, 2008 SCM R 713 and on unreported judgment in Criminal Appeal No,423 of 2009.
8. Complainant present in Court stated that he being a poor person is unable to engage a counsel, therefore, he will be satisfied with the arguments of State counsel.
9. Learned Additional Advocate-General on behalf of the State and complainant argued that the report of the occurrence was lodged within twenty minutes of the occurrence, therefore, there was hardly any time for false charge. He further argued that though in the F.I.R. One Adalat Khan was charged but Habib Khan and Hayat Khan while running away were apprehended soon after the occurrence. He argued that no suggestion whatsoever was put to the complainant that in fact Adalat Khan fired at the deceased but Habib Khan was substituted later on due to some reason. Similarly, no suggestion was put by the defence regarding tampering with the crime weapon and empty shell, therefore, the same cannot he brushed aside on the ground of sending the same with delay. He further submitted that motive was admitted by Hayat Khan accused in answer to question No,14 of his statement under section 342, Cr.P.C. As regards acquittal of Gul Haram accused he submitted that said accused was only shown present at the spot and no overt act was attributed to him. He contended that prosecution proved its case against the appellants without any shadow of doubt, therefore, appeal is liable to be dismissed.
10. Arguments heard and record perused.
11. Pepsal of record shows that the complainant (P.W.1) lodged the report within 20 minutes and the case was registered within 50 minutes of the occurrence though he charged one Adalat Khan. His son-in-law for firing at the deceased, in the F.I.R. But he also stated in the report that Adalat Khan and Haya Khan while decamping after the occurrence were apprehended by the police. In his supplementary statement recorded on 7-11-2006 stated that in fact firing was made at the deceased by Habib Khan. In his statement before the court he charged Haya Khan for catching hold and firing a single shot by Habib Khan at the head of deceased. He explained that as Adalat Khan and Habib Khan had resemblance, therefore, under misconception he charged Adalat Khan.
His statement under section 164, Cr.P.C., wherein he charged Habib Khan was exhibited as Exh.P.W.1/1. In cross-examination he again stated that he cannot distinguish Habib Khan and Adalat Khan, as they are having resemblance. Despite lengthy cross-examination nothing could be brought in favour of the appellants. Even it was not suggested that the appellants were not present at the spot at the time of commission of the offence or that the complainant was not present and deposed as eye-witness wrongly. Only this much was suggested that one Zamin Khan fired at the deceased and the accused were wrongly and mala fidely implicated and that actual facts are being suppressed by deposing ,falsety, rather it was further clarified that because Habib Khan was arrested at the spot and due to resemblance he charged Adalat Khan in the F.I.R., therefore, lateron Habib Khan was charged in statement under section 164, Cr.P.C. It was also got clarified that Haya Khan caught hold of the deceased from hands while Habib Khan fired at him. The fact of firing from close range is corroborated by the site plan in which deceased is shown at Point No,1 while Habib Khan accused at Point No,2 and the distance between Points Nos.1 and 2 is shown 4 feet, which is further corroborated by Dr. Bakht Jamal P.W.4, who during postmortem examination found one entry wound over the occiput and exit on the forehead in between the eyebrows.
12. Each criminal case has to be adjudged in its peculiar facts and circumstances. No universal rule can be laid down that in no case an interested or related witness can be relied upon. Interested witness is one, who has reason to falsely implicate an accused in commission of an offence.
Related witness some time particularly in murder cases may be found more reliable because he would not substitute an innocent person by letting off the actual culprit. Evidence of interested witnesses cannot he discarded unless found unreliable and untrustworthy. However, not as a rule of law but as a rule of prudence, sometimes corroboration is sought.
13. Appellants were apprehended by the Police posted at National Bank from the spot while running away after the occurrence, .30 bore pistol along with seven rounds was recovered from the possession of Habib Khan. Though Muhammad Ismail FC (P.W.6) tried to make some obliging concessions regarding production of pistol by him to the I.O. And tried to suppress arrest of Haya Khan but the same are of no consequence because Wazir Muhammad A.S.-I. (P.W.7) the Investigating Officer stated that .30 bore pistol along with seven cartridges were handed over to him by the said witness and he also arrested Habib Khan and Haya Khan vide card of arrest Exh.P.W.7/2, already apprehended by police, deputed as guard on the National Bank. These facts went unchallenged. Most probably defence had forgotten Haya Khan. It is quite settled that obliging concessions made; by recovery witness are of no consequence because investigating officer is as good witness as anybody else. Reliance can be placed on PLD 1980 SC 317 (c) and 2001 SCM R 1919.
14. It is well-settled now that fact deposed by a witness, in examination in-chief, if not cross- examined would be deemed to have been admitted by the defence. Reliance can be placed on 2000 PCr.LJ 216 and 2007 SCM R 518.
15. Now coming to the argument of C learned counsel for appellant regarding dispatch of crime articles, with delay of 14 days to the Laboratory, needless to mention that not a single suggestion was put to the witnesses that the pistol was planted against accused Habib Khan or that empty shell was fabricated or the case property was tampered. On sole ground of delay in sending the crime articles to the Fire Arms expert evidence of recoveries and positive report of the Laboratory cannot be brushed aside.
16.Argument of learned counsel for appellants regarding non-mentioning of the empty shell in the F.I.R. And inquest report is misconceived. Report of the occurrence was lodged in the casualty ward of the hospital, therefore, there was no occasion to mention the presence of empty shell at the spot in, the report or inquest. Even otherwise, under section 174, Cr.P.C. Read with Chapter XXV Rule 35 of Police Rules, mentioning the F.I.R. Number, names of the accused or eye-witnesses or presence of empty shell in the inquest report is not a requirement of law. Reliance can be placed on 1968 SCM R 1240, PLD 1977 SC 4, PLD 1978 SC 171 and 2.001 SCMR 241.
17.Motive, though set-up in the F.I.R. Was not alleged before the Court, but Haya Khan narrated the same in his statement under section 342, Cr.P.C. It is well-settled that weakness or absence of motive or failure to prove the same cannot adversely affect the prosecution case, if it is otherwise proved beyond reasonable doubt.
18. Under section 34, P.P.C., when a criminal act is done by several persons in furtherance of common intention, then each of them is liable as if it was done by him F alone. Common intention is a question of fact which can be ascertained from the evidence recorded in the case. Haya Khan appellant is attributed the role of catching hold of deceased, when Habib Khan fired at his head. In cross-examination P.W.1 clarified that Haya Khan caught the deceased from his hands when he was fired upon by Habib Khan. This shows the common intention and facilitation of the murder of Taza Khan.
19. So far acquittal of Gul Haram Khan is concerned, except presence at the spot, no role whatsoever was attributed, and he was acquitted by extending benefit of doubt to him.
20. In nutshell, charge of murder of Taza Khan stands proved against the appellants by prompt F.I.R., ocular account furnished by P.W.1, apprehension of the accused Habib Khan along with crime weapon and of Haya Khan, soon after the occurrence from the spot, corroborated by medical evidence, recoveries from the spot, motive and positive reports of the Serologist and Fire Arms Expert.
21. We are of the view that the trial Court has appraised the evidence on record thoroughly, properly and fairly, keeping. In view the principles of safe administration of the criminal justice. The judgment is based on sound reasoning.
22. Consequently, criminal appeal filed by Habib Khan and Haya Khan, having no merit is hereby dismissed. Their conviction and sent laces are maintained. However, it is directed that in case of non-payment of amount of compensation by them the same shall be recovered as arrears of land revenue in terms of section 544-A, Cr.P.C.