' MUHAMMAD HASHIM KHAN KAKAR, J.---Criminal Jail Appeal No,11 of 2011 has been presented by pauper appellant Nasrullah alias Nasro through Superintendent, Central Jail, Mach, challenging his conviction and sentence of death under section 302(b) of the P.P.C., recorded vide judgment dated 13th April, 2011 by the Sessions Judge, Loralai. The Sessions Judge has sent Murder Reference No,6 of 2011 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Complainant Zahir Khan son of Tore Khan (P.W.4), in his Fard-e-Bayan Exh.P/4-A, alleged that on 20th April, 2010, he was present in his house situated at Killi Tore Khan, Dukki and, on receiving telephonic information regarding the murder of his sister Hameeda Bibi by her husband Nasrullah alias Nasro by means of firing, he rushed to the house of his sister Mst. Hameed. Bibi situated at Killi Arabaseen, Loralai, where he found the dead-body of his sister and he brought the same to civil hospital. On query, he came to know that accused Nasrullah alias Nasro, Abdul Majeed sons of Sardar Khan and Sardar Khan committed the murder of his sister by means of firing. The motive behind the incident was disclosed matrimonial dispute. Consequently, case vide Crime No, 49 of 2010, under section 302 read with section 34 of the P.P.C., was registered at Police Station Sadar Loralai.
3. After registration of F.I.R. Exh.P/6-A, initially the investigation of the case was carried out by P.W.6 Kazin. Ali, IP, who went to Civil Hospital and took into possession the blood-stained clothes of the deceased vide memo Exh.P/3-A. He prepared inquest report Exh.P/6B of the deceased and released the dead body to her heirs vide receipt Exh.P/6-C. Thereafter, he visited and inspected the place of occurrence, prepared site inspection plan Exh.P/6-D, also prepared hand made site plan Exh.P/3-E through Patwari, secured blood-stained earth and collected two crime empties vide memos, prepared site inspection memo, recorded the statements of P.Ws., obtained death certificate of the deceased, sent blood-stained earth and clothes of the deceased to FSL for analysis and after completion of the investigation, placed the papers before IP/S.H.O., who prepared incomplete challan Exh.P/6-F.
4. On arrest of the appellant, furth .r investigation was conducted by P.W.7 Khalil Ahmed, S.-I., who on the disclosure and pointation of the appellant, recovered crime weapon i,e, pistol from his house, which was taken into possession vide recovery memo and a separate case under the Arms Ordinance was registered against him. He .Sent the crime weapon to FSL for examination and, accordingly, obtained Ballistic Expert's report Exh.P/7-D. He also obtained report of FSL Exh.P/7-A regarding blood-stained articles and produced incomplete challans Exh.P/7-B and Ex.P/7-C in the Court.
'5. On the stated allegation, a formal charge was framed and read over to the appellant, to which he did not plead guilty - and claimed trial. To prove the accusation, the prosecution produced seven witnesses. P.W.1 Taveez Khan is eye-witness of the occurrence and informed the complainant about the incident through telephone. P.W.2 Dr. Amjad Parvez, Senior Medical Officer, DHQ Hospital, Loralai, examined the dead body of the deceased and issued death certificate Exh.P/2-A. P. W.3 Amanullah, constable, is witness to the recovery memos. Exh.P/3-A and Exh.P/3-B regarding blood-stained clothes and earth of the deceased, site inspection memo. Exh.P/3-C, disclosure memo Exh.P/3-D of the accused, recovery memo. Exh.P/3-E of crime weapon. P.W.4 Zahir Khan is complainant of the case, who placed on record his Fard-e-Bayan Exh P/l-A . P. W.5 Raza Khan is another eye-witness of the occurrence. He is also witness to the collection of two crime empties from the place of occurrence vide memo. Exh.P/5-A. P.W.6 Kazim Ali, IP, and P.W.7 Khalil Ahmed, S.I., are the Investigating Officers of the case. Then the prosecution closed its side.
6. In his examination undersection 342 of the Cr.P.C, the appellant denied the prosecution accusation and claimed to be innocent. He, however, did not opt to record his statement on oath as envisaged under section 340(2) of the Cr.P.C, nor produced any witness in 'his defence. The trial Court, after close of parties evidence, found the case of prosecution to have been proved against the appellant and, thus, he was convicted and sentenced as mentioned and detailed above.
7. It has been argued by learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus this appeal warrants acceptance, with a resultant acquittal of the appellant. On the contrary, the learned counsel for the State, duly assisted by learned counsel for the complainant, has maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal deserves dismissal.
8. We have carefully considered the respective contentions putforth by the parties learned counsel in the light of evidence available on record and also gone through the impugned judgment. So far as homicidal death of deceased Mst. Hameeda . Is concerned, the same has not been categorically denied by the defence, which is, otherwise, proved by the statement of P.W.2 Dr. Amjad Pervaiz, Senior Medical Officer, DHQ Hospital, Loralai, who had confirmed that the injury sustained by the deceased was result of firearm bullet and the cause of death was internal bleeding and damage of vital organs.
9. However, the question arises as to who caused this injury and was responsible for the homicidal death of the deceased. In this regard, the prosecution has relied upon the statement of P.W.1 Taveez Khan and P.W.5 Raza Khan, who claimed to have seen the occurrence. In their depositions before the trial Court, they had stated that on the fateful day, they went to Killi Arbaseen to meet Mst. Hameeda, who happened to be their cousin. The accused/appellant Nasrullah was demanding money from his wife Mst. Hameeda Bibi, who refused to make payment, whereupon the appellant took out a pistol and Hameeda Bibi started running towards drawing room. They further deposed that they tried to save her, but appellant Nasrullah made two fires on Hameeda Bibi, who sustained a bullet injury on her chest and died on the spot. They informed the brother of the deceased, viz, Zahir Khan regarding the occurrence on telephone and took the dead body to Civil Hospital, Loralai. Despite lengthy cross-examination, the defence failed to create any dent in their veracity, except a few discrepancies, which are immaterial and not fatal to their evidence.
10. It may be noticed that P.W.1 Taveez Khan is paternal cousin, whereas P.W.5 Raza Khan is the cousin of deceased Mst. Hameeda, but only on account of relationship with the deceased, they cannot be termed as interested witnesses for the reasons that they had no direct animosity with appellant Nasrullah, who have been attributed fatal injury to the deceased. By holding this view, we are fortified from a case of "Muhammad Amin v. The State", 2000 SCM R 1784, wherein it has been held by Hon'ble Supreme Court of Pakistan as under:-- "An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
Likewise, the Hon'ble-Supreme Court in a case of "Muhammad Akhtar Ali v. The State", 2000 SCM R 727, held as under:- "Moreover, we find that none of the two eye-witnesses could be termed as interested witnesses because none had any previous ill-will or grudge against the petitioner. Merely, because P.W.4 is father of the deceased and P.W.5 belongs to the "Baradari" of the deceased, would not make them interested as they had no reasons to substitute the petitioner for the real killer."
11. Even otherwise, the statement of a witness, who is a natural witness and whose presence at the place of occurrence could not be doubted, cannot be discarded merely on the ground that he is an interested witness, though the Courts, by way of abundant caution, look for corroboration from other ocular circumstantial evidence. In the instant case, as already observed, the statements of these witnesses are not only corroborated by the medical evidence, but also by the recovery of pistol from the possession of appellant Nasrullah on his disclosure and pointation from his house.
P.W.3 Amanullah in his Court-statement deposed that on 1st June, 2010, the appellant, during course of interrogation, made disclosure before S.-I. Khalil Ahmed and in consequence of such disclosure, he was taken to his house situated at Killi Arbaseen in an official vehicle, wherefrom he took out a TT Pistol No,2499 from a dry water-tank and handed over the same to Khalil Ahmed, S.-I., who took into possession the same through recovery memo. Exh.P/3-E and prepared its sealed parcel No,4. The positive report of Firearms Expert further corroborates the ocular evidence, furnished by P. W.1 and P.W.5. Learned counsel for the appellant objected on the admissibility of said report, on the ground that it was without reasoning. It is suffice to observe that at the time of tendering report in evidence; firstly, no objection was taken regarding its admissibility; secondly, under section 510 of the Cr.P.C. Any report of Firearms Expert, appointed by the government, is admissible in evidence without examining him. The perusal of report Exh.P/7-D shows that the same was issued by Firearms Examination Unit, office of the Assistant: Inspector-General of Police, Forensic Division, Sindh, Karachi, established by the Government of Sindh, as such, it could not be said that the said report was issued by an Expert, not appointed by the Government. Similarly, it may be seen that the report was brought on record without objection and if the appellant was not satisfied, he could have called the Expert to stand for the test of cross-examination, as envisaged under the proviso to section 510 of the Cr.P.C.
12. The contention of learned counsel for the appellant that there is a conflict in the medical and ocular evidence, as such, the medical evidence has to be preferred over ocular account. We may observe that each case has to be decided in the light of its peculiar facts and circumstances.
When the ocular evidence is confidence-inspiring and the Courts consider the witness to be truthful, then merely on the ground that the medical evidence contradicts the ocular account is not sufficient to discard the testimony of such reliable witness. In case of "Amir Khan v. The State", 2000 SCM R 1885, the Hon'ble Apex Court observed as under:-- "It has time and again been held by the superior Court that if a bald statement of a Medical Expert is opposed to the proved and admitted confidence inspiring and reliable account of the eye- witnesses or other material and trustworthy evidence on record, then the latter are to he preferred against the former.
Similarly, we are also fortified by the judgment in case of "Sarfraz alias Sappi v. The State", 2000 SCM R 1758, wherein the Hon'ble Apex Court observed as under:-- "Appraisal of evidence---Ocular and medical evidence-Conflict between---Where there is any variation between ocular and medical evidence, the later ,does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy."
13. Furthermore, opinion of a doctor is not binding upon the Courts ipso facto, but Court has to see the opinion expressed by a doctor if to be acceptable in the light of well-recognized principles of medical jurisprudence. In the instant case, though the doctor has described the injury on the backside as "entrance wound" and that on the chest as "exit wound", but careful perusal of the medical certificate and statement of the doctor shows that he failed to give any reasoning for reaching to this conclusion: Moreover, in the medical certificate, size (measurement) of these.
Wounds have not been given and it lacks necessary particulars as regards the entrance and exit of the bullet are concerned i,e, whether the edges of the injuries were inverted or everted in shape, so as to furnish basis with regard to the location of the seat of entrance and exit wounds, in absence whereof implicit reliance on the point cannot be placed-on the testimony of the doctor. As noted above, due to deficient descriptions of the wounds given by P.W.2, it cannot be said with certainty that the opinion of the doctor was correct in the light of well-known principles of medical jurisprudence. The deceased suffered fatal shot in presence of her cousins, who, .Obviously, were looking at the awful scene with great amount of tension about fate of the victim, as such, it could not be expected from P. Ws. To have given the exact location of the shot i,e, entrance and exit of the wounds, therefore on the basis of such contradiction, bearing no material significance in the circumstances of the case, their statements could not be discarded, particularly when their presence at the place of occurrence has been established beyond any doubt. The Hon'ble Supreme Court of Pakistan in a case of "Saeedullah Khan v. The State", 1986 SCM R 1027, in similar circumstances, observed as under:- "Medical evidence indicating that shot hit deceased on back and had come out from front, whereas ocular testimony described shot to have been received by deceased from front of chest- Eye-witnesses categorically stating in cross-examination that deceased was hit from front and bullet passed through her body emerged from her back---Trial Court adverted to such inconsistency but gave no importance to contradiction and this aspect was not highlighted or pressed ' before High Court--- Occurrence was result of confusion and excitement generated by dramatic circumstances in which offence was committed--No doubt existing about presence of eyewitnesses and their testimony fully implicating accused---Conviction and sentence maintained."
14. Another important circumstance, which has immense corroborative value, is the absconsion of appellant Nasrullah. It is in evidence that he remained fugitive from law and was apprehended after a period of two months. Regarding this piece of evidence, he could not offer any tenable explanation. In this regard, we are fortified by a case of "Mst. Roheeda v. Khan Bahadur", 1992 SCM R 1036, wherein the Hon'ble Supreme, Court observed as under:-- "No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case, the accused/respondent No,1, Jahanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case.
15. Coming to the question of confirmation of death sentence awarded to appellant Nasrullah by the trial Court, it may be noticed that he had taken away the life of an innocent person, who happens to be his legally wedded wife and there are no mitigating circumstances to award lesser penalty. Although prosecution failed to establish any motive against him to commit the murder of the deceased, but only on this ground death sentence cannot be Withheld, which is, otherwise, normal penalty for committing murder. The Hon'ble Supreme Court in a case of "Saeed Akhtar v.
The State", 2000 SCM R 383, maintained the death sentence despite insufficiency of motive and relationship of the witness with the deceased. It would be advantageous to reproduce the relevant observations:- "Sufficiency or otherwise of the motive is not a sine qua non for the commission of the offence. It has been noticed that some desperate, reckless and ruffian type of people commit murder or other offences just at their whims while on the other hand people who have been properly nourished, educated and disciplined, do not lose their temper in most .Challenging situation, but rather act with patience and sobriety. Therefore, in a case where murder is proved, insufficiency of motive would not be a bar for imposition of normal penalty of death. It is not (2 case where motive can be said to be shrouded in mystery but even if for arguments' sake it had been so even then awarding of lesser penalty would not have been justified in absence of proving any mitigating circumstance."
Having given our anxious thought to the arguments of learned counsel for the parties, we feel that the preponderance of evidence on record, as rightly appreciated by the trial Court, is sufficient for holding the appellant guilty of the charge. There is hardly any substantive ground for lawfully challenging the impugned judgment, thus, Criminal Appeal No,11 of 2011 is dismissed and the Murder Reference No,06 of 2011 is answered in affirmative.