' NISAR HUSSAIN KHAN, J.---Appellants Khan Ahmed Khan son of Gul Ahmed Khan and Dil Nawaz Khan son of Khan Ahmed Khan, were tried by learned Additional Sessions Judge-H, Bannu, in case F.I.R. No,65 dated 6-3-2008, registered under sections 302/324/34, P.P.C. At Police Station Ghoriwala, District Bannu, for committing the Qatl-e-amd' of deceased Hashim Khan and were convicted under section 302(b), P.P.C. And sentenced to undergo Imprisonment for life. They were also convicted for the offence under section 324, P.P.C. And sentenced to undergo ten (10) years rigorous imprisonment. They have been ordered to pay compensation of Rs,1,00,000 (one lac) each to the legal heirs of the deceased under section 544-A, Cr.P.C. And the compensation so ordered, shall be recoverable as an arrear of land revenue and in default thereof they will suffer six (6) months simple imprisonment. Both the sentences of imprisonment have been ordered to be run concurrently and benefit of section 382-B, Cr.P.C. Has also been extended to the appellants- convicts.
2. Being aggrieved from the order of conviction, the appellants-convicts have filed Jail Appeal bearing No, Criminal Jail Appeal No,122 of 2009 and regular Appeal bearing No,124 of 2009, through their counsel, against the same judgment of the learned trial Court and both these appeals are to be disposed of through this single judgment.
3. Brief facts of the case are that, on 6-3-2008 at 3-30 a.m., complainant Ijaz Khan son of Munawar Khan (P.W.5) along with dead body of his deceased brother Hashim Khan, made a report in Civil Hospital Bannu to (late) Muhammad Naeem Khan ASI to the effect that he is tenant of one Faqir Ahmed Khan while Khan Ahmed Khan is also tenant of said Faqir Ahmed Khan. He is holding in his tenancy the double share of land than that of Khan Ahmed. On the night of occurrence, he had his turn of irrigation at 2300 hours. He along with his brother was busy in irrigating the land when in the meanwhile, the flow of water stopped. To enquire about the cause of stoppage of the flow of water, he along with his deceased brother proceeded towards "Pathay Khulla". It was 00.45 the deceased was going ahead and the complainant was following him, in the meanwhile, Khan Ahmed Khan son of Gul Ahmed Khan armed with' Mark-IV rifle and Dil Nawaz Khan son of Khan Ahmed Khan armed with 5-shots gun (Panj Guzar), emerged on a beaten path (Breed), falling in the land of Muhammad Nazif Khan and started firing at them with their respective weapons, with the intention to commit their Qatl-e-amd. He (the complainant) luckily escaped, while his brother Hashim Khan sustained firearm injuries and fell on the ground. The complainant identified the accused in torch's light. The accused decamped from the spot, after the occurrence. The moment, complainant came near him, the deceased had already expired. Motive of the occurrence has been stated to be exchange of hot words between the accused, and the complainant party, on irrigation, prior to the occurrence.
4. The report of the complainant Ijaz Khan was recorded by (late) Muhammad Naeem Khan ASI in the murasila Exh.P.W.5/1, which was sent to the Police Station for registration of the case through Mamrez Khan Constable No,2256 FRP, on the basis of which F.I.R. Exh.P.W.4/1 was registered by incorporating its contents in the said F.I.R. The case was investigated by Muhammad Saleem Khan ASI (P.W.6) and on completion of investigation; complete challan was submitted against the appellants-convicts. ,
5. On receipt of the challan, the appellants-convicts were summoned by the learned trial Court and after due compliance of the provisions of section 265-C, Cr.P.C., they were formally charge- sheeted, to which they pleaded not guilty and claimed trial, hence, the prosecution was invited to lead evidence in support of its case.
6. In order to prove guilt of the appellants-convicts, the prosecution examined seven witnesses.
Brief account of their evidence is as follows:--
7. P.W.1 is doctor Ayub Nawaz Khan M.O. DHQ Hospital Bannu, who had conducted autopsy on the dead body of the deceased and found the following injuries on his person, vide post mortem report Exh. P.W. 1/1.
Wounds:
(1) One big size FAI injury wound 6" x 6" in size noted on right side of skull with visible brain matter.
(2) No exit wound on skull noted on other side.
(3) One FAI entry wound size 112" in size on lower left chest cage.
(4) One FAI exit wound on right side of chest 1"x 1" in size. Cranium and Spinal Cord: Scalp, skull, membranes, brain injured. Thorax: Except larynx and traches, rest injured. Abdomen: Walls and diaphragm injured, rest healthy. Stomach contained semi solid fluid. Muscles, Bones and Joints: Muscles, bone, joint injured at the site of injuries. Ribs fractured.
Remarks: In his opinion the deceased died due to injuries to vital organs like brain, heart and lungs leading to cardio - pulmonary arrest.
Probable time elapsed between injury and death: On the spot (instantaneous).
' Probable time between death and PM: 03 to 3-1/2 hours.
8. P.W.2 is Gul Wali son of Muhammad Akbar, who identified the dead body of deceased Hashim Khan before the local police as well as before the doctor.
9. P.W.3 is Muhammad Ali Shah Constable No,53, who was entrusted with the warrants of arrest issued against the appellants-convicts under section 204, Cr.P.C. He after due compliance of all the legal formalities, returned the same along with his reports, tendered in evidence as Exh.P.W.3/1 to Exh.P.W.3/4. Likewise, proclamation under section 87, Cr.P.C., were, also entrusted to him. After due compliance thereof, he returned the same with his reports which were tendered in evidence as Exh.P.W.3/5 to Exh.P.W.3/8, respectively.
10. P.W.4 is Sadullah Khan ASI, who on the basis of murasila, sent by Muhammad Naeem Khan AS!, registered F.I.R. No,65 by correctly incorporating its contents therein.
10. P.W.5 is complainant Ijaz Khan, who is the sole eye-witness of the occurrence. He has narrated the same story, which was incorporated in his original report. He was subjected to lengthy and searching cross-examination by the defence but nothing beneficial to the appellants could be extracted from his mouth. He stood firm to the test of cross-examination.
12. P.W.6 is Muhammad Saleem Khan ASI. He has conducted investigation in the case.- On receipt of F.I.R., he proceeded to the spot and prepared site plan Exh.P.W.6/1, on the pointation of the complainant. During spot inspection, he took into possession bloodstained earth from the place of the deceased, one empty shell of .303 bore Exh.P-1, along with 2 live rounds Exh.P.2, out of which one was missed, from the place of Khan Ahmed appellant and one empty shell of Five-Shots riffle Exh.P.3 from the place of the accused Dil Nawaz, vide recovery memo Exh.PW.6/2, in presence of marginal witnesses. He sealed the same in parcels Nos.1 to 3 respectively. He also took into possession a Torch Exh.P-4, vide recovery memo Exh.P.W.6/3, produced by complainant Ijaz Khan, in presence of marginal witnesses of the recovery memo. Similarly, vide recovery memo Exh.P.W.6/4, he took into possession blood-stained shirt of deceased Hashim Khan Exh.P.5, sent by the doctor and sealed the same in parcel No,4. He applied for initiation of abscondence proceedings against the accused vide his applications Exh.P.W.6/9 and Exh.P.W.6/10, recorded statements of the P.Ws. Under. Section 161, Cr.P.C. As well as supplementary statement of the complainant. On completion of investigation, he handed over the case file to Hanif Khan S.I. For submission of complete challan against the accused. In the meanwhile, Umar Khan SHO of Police Station Ghoriwala, who had prepared arrest card of accused Dil Nawaz and had submitted supplementary challan against the said accused, had died, therefore, P.W.6 being well conversant with his handwriting and signature, also endorsed the above documents prepared by the said SHO.
13. P.W.7 Asmatullah Khan HC is marginal witness to recovery memo Exh.P.W.6/2, vide which blood- stained earth from the place of the deceased, one empty of .303 bore and 2 live rounds of thesame bore were taken into possession by the I.O. During spot inspection in his presence.
Similarly, he has also witnessed the recovery of one empty of 5-Shots rifle from the place of accused Dil Nawaz. Vide recovery memo Exh.P.W.6/3, a Torch was taken into possession by the I.O.
Produced by complainant Ijaz Khan, in presence of this P.W. Similarly, the bloodstained shirt, having corresponding cut marks and stained with blood of the deceased was also taken into possession by the I.O. In his presence, vide memo Exh.P.W.6 /4.
14. It is pertinent to mention that there is a statement of Rast Baz Khan DPP dated 14-5-2009, recorded by learned trial Court, which transpires that P.W. Umar Khan SHO who submitted complete challan of the case and Muhammad Naeem Khan ASI, who recorded the original report of the complainant in the shape of murasila, have been abandoned being dead. Due to which the murasila was exhibited in the statement of the complainant.
15. After close of the prosecution evidence, appellants-convicts were examined under section 342, Cr.P.C. Wherein they have professed their innocence; however, they neither wished to be examined on oath under section 340(2), Cr.P.C. Nor opted to produce evidence in defence. Learned trial court, on conclusion of trial, after providing opportunity of hearing to both the parties, convicted and sentenced the appellants, as recorded above, hence, these appeals.
16. Mr. Anwar-ul-Haq, Advocate, learned counsel for the appellants-convicts contended that no weapon of offence has been recovered from the appellants; that the distance between the accused and the deceased as per site plan is 29 and 31 paces, from which the identification of the assailants is impossible in the light of the torch. He further contended that if one keeps the site plan into consideration, then the ocular account furnished by a sole eye-witness, is contradicted by postmortem report of the deceased. To elaborate his contention, learned counsel argued that the appellants have been shown on points Nos.2 and 3 in the site plan while the deceased at point No,1, facing towards them, but the injuries on the, person of the deceased are on backside, which creates serious doubt in the prosecution case, the benefit of which should be extended to the appellants-convicts. Learned counsel further argued that as per postmortem report. Exh.P.W.1/1, the autopsy of the deceased was conducted at 4-00 a.m. While the F.I.R. Has been registered at 4- 45 a.m., which also shows mala fide on the part of the police. That the torch' when examined in the Court, was also not in working condition. He lastly submitted that neither any instrument used for irrigation purpose, such as spade or any other implement, was recovered by the I.O. From the spot nor produced by the complainant to establish the very purpose of their visit, to the scene of occurrence at the odd hours of the night.. So all these infirmities create doubt in the prosecution case, the benefit of which should be extended to the appellants-convicts not as concession but as a matter of right.
17. Mr. Muhammad Farooq Sokri, Advocate, learned counsel for the complainant, assisted by Mr. Faridullah Khan, learned DAG for the State, while defending the conviction, argued that the impugned judgment is well reasoned, based on proper appraisal of evidence available on the record and application of the law on the subject.
18. We have heard the learned counsel for the parties and learned DAG at length and scanned the record with their assistance.
19. Admittedly, there is sole eye-witness of the occurrence and he too is the real brother of the deceased, so the Court is at guard while appreciating his statement in the light of other pieces of evidence, available on the record. According to the prosecution version, the occurrence has taken place at 0045 hours i,e,. At midnight while the place of occurrence is in the fields, where the deceased and the complainant had gone to irrigate their land, on their turn of irrigation. The place of occurrence, as alleged by the complainant, is established by the recoveries of empties from the places of the appellants-convicts and recovery of blood-stained earth from the place of the deceased, during spot inspection by the I.O. While the defence has neither challenged the venue of occurrence during the trial nor any argument has been advanced on this aspect of the case.
Besides that empties of two types of rifles have been recovered from the spot and the FSL report is also in line in this regard that these were fired from .303 bore and 7.92 MM bore rifles as alleged by the complainant in his report. So by this recovery, it is established that the assailants were two in number, present at their respective places on the spot. According to the F.I.R., the occurrence has taken place at 0045 hours and post mortem of the deceased was conducted at 4-00 a.m. Of the same date. While probable time between death and postmortem, according to opinion of the doctor, reflected in postmortem report Exh.P.W.1/1, is 3 to 3-1/2 hours, which correctly corresponds with the time of occurrence, as alleged by the complainant. Thus, in our view, the time of occurrence is established from the medical evidence as well. Now the question is left that whether the complainant was present with the deceased at the time of occurrence or not? According to the complainant's version, he proceeded in company of his deceased brother to their fields for irrigation, as their turn of irrigation was at 2300 hours of the night. It is quite natural in village life that one may not go all alone, in the odd hours of night to his fields for irrigation. Rather he would prefer to accompany with his kith and kin, so there is no reason to disbelieve this version of the complainant, unless there are some compelling or reasonable circumstances to dislodge this impression. The report was lodged within a reasonable time of 2-30 hours, keeping in view the distance between the place of occurrence and Civil Hospital Bannu. Although, the distance from the spot to Civil Hospital Bannu is not mentioned in the F.I.R. Or in any other document but the record shows that the venue of the occurrence falls within the jurisdiction of Police Station Ghoriwala, which is at a distance of 8/9 Kilometers from the place of occurrence. So in the circumstances, the place of occurrence might be at a distance of more than 8/9 Kilometers from Civil Hospital Bannu. Because Bannu City being District Headquarter, has its own Police Station.
Besides that, it is undisputed that appellant Khan Ahmed is the husband of the real paternal Aunt of the complainant and the deceased, while-appellant Dil Nawaz Khan is his son, so in this way he is the first cousin of the complainant. While there is no previous blood feud or any other enmity between the parties except an altercation prior to the occurrence on the dispute of irrigation. Thus there is no reason to falsely implicate, such close relatives in the murder case. It is also unbelievable that the complainant would substitute his close relatives for the real culprits by charging them for the murder of his brother. Even otherwise, substitution for the real culprits is a rare phenomenon, because nobody would spare the actual culprits for such a heinous crime and would falsely implicate his innocent close relatives and that too, when there is no previous enmity.
20. Another aspect of the case is that, whether the appellants could have been convicted on the statement of a single eye-witness. The time and place of occurrence are such, that neither there is any possibility of any other person to be available at the scene of occurrence, who might have seen the occurrence and should have been produced to corroborate the statement of the complainant nor the defence has brought anything on record to highlight this aspect of the case, that the occurrence might have been witnessed by anyone else, who could have been produced but have been withheld. In the circumstances, when there was nobody else except the complainant who has seen the occurrence, the Court will have to consider the statement of the available eye-witness. It is by now well-settled law, that conviction can be recorded by the Courts on the basis of statement of sole eye-witness, if it rings true and is confidence-inspiring. It is the quality and not the quantity of the evidence, which is to be seen by the Courts. If the intrinsic value of the statement of an eye-witness is such, which satisfies the judicious conscious of the Court, it should be c believed. Because Article-17 of the Qanun-e-Shahadat Order, 1984, clearly postulates that, except Hudood cases and financial matters, a case can be proved through the evidence of a single witness. And every person is competent to testify irrespective of his relation with the deceased unless he is proved to be inimical towards the accused and deeply interested in his conviction due to his previous enmity.
21. There is no question of misidentification of the appellants convocation as well. Because they are closely related to the complainant, who is well conversant with their body structures and features, as they meet each other, day in and day out. While the complainant has alleged that he identified them in the torch's light. The availability of torch in D the hand of the complainant is quite natural because they were busy in their job of irrigation at midnight; thus the torch must be in their hands. The said torch containing three cells, was produced to the I.O. By the complainant on the very first day of the occurrence, which was taken into possession, vide recovery memo Exh.P.W.6/3 and during the trial, it was marked as Exh.P.4. Although it was found rustic at the time of examination/before the Court but that condition of the torch was natural effect of time as it was being examined in the Court on 6-3-2008 i,e, after more than one year of its production before the I.O. So far as the objection of non-sealing of the same into parcel is concerned, it may be because of lapse and lethargy on the part of the Investigating Officer, which may not detract the veracity of the prosecution case because it was not only referred in the very first report of the complainant but was produced on the very first day of the occurrence to the I.O., who has clarified in his court statement that it was in working condition, at the time of recovery. In case titled, "Khurshid v. The State" PLD 1996 SC 305, in Paragraph No,11, the Supreme Court observed as follows:-- "The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided the same have not prejudiced the, accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities".
22. Now coming to objection that the medical evidence contradicts the ocular account of the complainant, when one keeps in mind the site plan of the place of occurrence. Suffice it to say that it is by now settled law of the Hon'ble Supreme Court that, site plan is not a substantive piece of evidence, which may be used to contradict or discredit the evidence of an eye-witness.
According to the site plan, the assailants have been shown at points Nos.2 and 3, while the deceased was moving towards them from point No,1, followed/by the complainant at point ND.4.
As per prosecution version, the deceased was neither sitting nor static rather he was moving. So the moment he sensed the danger of presence of assailants at points Nos.2 and 3 and was alarmed by their presence, he might have turned around due to fear, as a result of which, the fire shots hit on the back side of the deceased. The occurrence was so sudden that the complainant might have not noticed these minute details or it might not have been recorded in F.I.R. Nor the F.I.R. Is supposed to have detailed account of event. But it may be assessed from the circumstances of the case by a mind of common prudence and cannot be lost sight, thereof.
Besides that, the eye-witness has not been cross-examined on this aspect of the case. Had he been put any such question by defence, he might have clarified the situation. Mere contradiction of Medico legal report cannot overweigh the' ocular account. In this regard Judgments of the Hon'ble Supreme Court in cases. Titled, "Saeedullah Khan v. The State" 1986 SCMR 1027, can be safely relied upon.
23. The objection of learned counsel for the appellants with regard to the escape of the complainant, during firing, also does not carry any weight. Firstly, because the miracles do occur in the human life and it was so in the instant case. Secondly, mere presence of stamp of injuries on the person of a witness is not a yardstick for determining the truthfulness or falsehood of a witness. It cannot be believed that every injured witness would speak truth and every unhurt eye- witness would tell lie. It is the circumstances of the case and intrinsic worth' of his statement, that determines the veracity and credibility of a witness, which can be assessed in the light of attending circumstances of each and every case. A straightforward and truthful account of events, furnished by an eyewitness, cannot be brushed aside, merely for the reason, that he does not bear the stamp of injuries on his person or he has escaped unhurt. In this regard, the judgment of the honourable Supreme Court in case titled, "Haroon-ur-Rashid and others v. State and another" 2005 Sall? 156,8, can be referred.
24. Moreover, the appellants, after the occurrence have absconded. Appellant Khan Ahmed Khan was arrested after eighteen days of the occurrence, while appellant Dil Nawaz was arrested after about more than three months. This conduct of the appellants is also a circumstance, which corroborates the version of the complainant. Had they been innocent, they might have accompanied the complainant and dead body of the deceased to the hospital and participated in the funeral ceremony of the deceased, being closely related to him but they opted to abscond after the occurrence, instead thereof. So by their abscondence, they have also thwarted the prospects of recovery of weapon of offence.
25. No doubt, it is well entrenched principle of law that accused is treated as a favorite child of the Courts and law and benefit of even a single doubt is extended to him. But the doubt must be reasonably entertained by a person of common prudence on justifiable grounds. The benefit cannot be stretched to the extent of self-created, imaginary and hypothetical doubts in favour of the accused at the cost of the family of the deceased who are the victims of the brutal acts of the accused. They too, require equal treatment of the Court of Justice. Thus, balance is to be maintained between the accused and the complainant party, in dispensation of justice, before a Court of Law.
26. From the testimonies of the P.Ws., motive for the crime, medical evidence, incriminating recoveries and implausible ascendance of the appellants, it is proved that the appellants have committed the Qatl-e-amd of deceased Hashim Khan and have attempted at the life of the complainant. Thus the learned trial Court ha rightly convicted and sentenced the appellants in the present case.
27. As a sequel to the above discussion, we while maintaining the conviction and 'sentences of the appellants, dismiss both the appeals.