Sher Muhammad appellant alongwith his brother Muhammad Asghar, since acquitted, was tried and found guilty under section 302, P. P. C. For the murder of one Nazir Ahmad alias Ahmad and sentenced to imprisonment for life and a fine of Rs. 3,000 to be paid to the heirs of the deceased as compensation. In case of default, he was to suffer further R. I. For one year. The order of the learned Sessions Judge, Gujranwala is dated 27March, 1976. He has come up in appeal.
2. According to the prosecution case Nazir Ahmad son of Imam Din P. W. 6 made a statement Exh.
P. A. Before A. S. I. P. W. 12 Altaf Ahmad Khan at Qadirpur Link Canal Bridge at a distance of about 2 miles from the Police Station, to the effect that the appellant Sher Muhammad was married about 8/10 years ago with one Mst. Surriya Begum from whom no child was born. About two years ago, he (the complainant) married his daughter Mst. Rasulan Bibi with Sher Muhammad appellant. Mst.
Rasulan Bibi gave birth to a girl who was about 7 months old. Soon after the birth of the little girl, the appellant's mother and his brother Muhammad Asghar, started looking for creating rift between the couple. Consequently, about 4 months earlier, appellant and hi, brother threw away the dowery of his daughter and turned her out. They were not prepared to allow Mst. Rasulan Bibi at any cost to settle in her matrimonial home. Besides Allah Ditta, Inayat, Muhammad Ashiq other members of the community were busy for the last 3/4 days to bring about reconciliation but during the midday Muhammad Asghar and Sher Muhammad abused his were but one Sher Muhammad son of Fazal got the matter over. After Isha prayers, according to the arrangement, he, Allah Ditta, Inayat, Muhammad Ashiq, Sher Muhammad son of Fazal, Nazir Ahmad alias Ahmad went upto the house of Muhammad Asghar, where Sher Muhammad appellant was also present. Both the brothers starting abusing, and told them to get away and that they would not allow Mst. Rasulan Bibi toth settle, on the other hand, would divorce her. He (complainant) told them to feel some shame.
Whereupon Muhammad Asghar raised a lalkara to Sher Muhammad to finish of the daily dispute on the day. Sher Muhammad brought out a -12 bore gun from behind the door. He (complainant) and his companions tried to get away but Nazir Ahmad alias Ahmad deceased stood the ground.
Muhammad Asghar called Sher Muhammad to shoot, whereupon the latter did so which hit Nazir Ahmad alias Ahmad on the head and the chest, who fell down in front of the house of Muhammad Asghar and expired in few minutes. The electric light was on and they saw the occurrence. After the incident, Ashar and Sher Muhammad ran away with the gun. The statement Exh. P. A. Was sent to the Police Station, where formal F. I. R. Exh. P.A./1 was recorded at 8 a.m. Of 31October, 1973, by Mehdi Zaman, Moharrir A. S. I. P.W. 2 Altaf Ahmad Khan P.W. 12, who had recorded the statement (Exh. P. A.) reached the spot and prepared injury statement Exh. P. J. And inquest report Exh. P. K. Of the deceased and, then, sent the dead body for post-mortem examination. On spot inspec--tion, he secured some blood-stained earth, which was secured into a sealed parcel in the presence of Allah Ditta and Inayat P. Ws. 10 and 8, vide, memo. Exh. P. E. He also recovered an empty P-3 in the presence of the aforesaid witnesses and sealed the same vide memo. Exh. P.D, Muhammad Adam Bhatti, S. H. O., P. W. Il arrested the accused persons.
3. Sher Muhammad and Muhammad Asghar on 4November, 1973. Licensed gun P. 4 was produced by Sher Muhammad appellant, which was taken into possession vide memo. Exh. P.F. In the presence of the P. Ws. Allah Ditta and Inayat.
4. Post-mortem of the deceased was conducted by Dr. Muhammad Sadiq Chaudhry, P. W. 7 on Ist November, 1973, who found the following injuries on the dead body of Nazir Ahmad alias Ahmad:-
(1) Wound of entry.-Circular inverted edges wound with charred edges --' in diameter on outer side right shoulder.
Wound of exit.-Circular wound with inverted edged --" in dia--meter on front right chest 1--" below middle of right collar bone.
(2) Wound of entry.--Circular --" in diameter wound inverted edges charred margin on right side head in temple region 1--" above from right ear and 4" on right of midline head, with swelling 4' x 3' around, and swelling 1" x 1 on left temple region 1--' above left ear.
(3) Wound of entry.---Circular inverted edges --" in diameter charred margins on right side of top of head ----- from midline head.
N. B.-All the wounds of entry in head region, hairs around them were found singed.
5. On 2November, 1973, according to Mehdi Zaman P. W. 2, sealed parcel containing blood- stained earth ride memo. Exh. P. E. Was deposited with him by Altaf Ahmad Khan A. S. I. P. W. 12, which was kept in the safe custody in the Malkhana. On the same date, he handed over the said parcel in tact to Muhammad Hameed F. C. P. W. 4 for onward transmission to the office of the Chemical Examiner at Lahore. On 4th November. 1973, two sealed parcels were handed over to him by Muhammad Aslam Bhatti, S. H. O., P. W.
11. Which were kept in safe custody. On 7November, 1973, these parcels were entrusted to Muhammad Afzal F. C., P. W. 3, for onward transmission to the office of the Forensic Science Laboratory, Lahore. Out of the two sealed parcels deposited on 4th November, 1973, one contained an empty P. 3 and the other gun. P.
4. According to the report of the Fire-arms Expert Exh. P. Q. The empty P.
3. Was fired from the gun, P. 4.
6. At the trial, Nazir Ahmad P. W. 6, Muhammad Ashiq P. W. 7, Inayat P. W. 8 and Allah Ditta P. W. 10, appeared as eye-witnesses and the last two as two recovery witnesses also and supported the prosecu--tion case.
7. The accused denied the allegations and stated that they were implicated on account of enmity.
They produced documents to show that deceased party had other enemies.
8. The learned trial Court/Sessions Judge, Gujranwala found the Ocular testimony against Sher Muhammad appellant having been fully corroborated by medical evidence, recovery of empty P. 3,st th nd th from the place of occurrence, production of a licensed gun P. 4, by him before the police evidence of the Fire-arms Expert to the effect that the empty P, 3, was fired from the gun P. 4, held him guilty under section 302, P. P. C. And sentenced him as stated above.
9. In support of the appeal, learned counsel appearing for the appellant has raised the following contentions: Firstly, that the motive having not been proved according to the finding of the learned Session: 6 edge, the prosecution trust suffer because if it alleges one and fails to prove the same, that destroys the prosecution case. He referred to Hakim Ali etc. v. The State (1971 SCMR 432), Ameenullah v. The State (PLD 1976 SC 629). Secondly, that the F. I. R. Was recorded at the spot and, therefore it loses all its sanctity and the witnesses supporting the story cannot be believed. He placed reliance on Anwar v. State (1975 P Cr. L J 750) and Allah Bakhsh v. State (1969 P Cr. L J 1204).
In support of the contention that the F. I. R. Was recorded at the spot, the learned counsel has referred to the statement of the complainant Nazir Ahmad P. W. 6, where he has so stated in the cross-examination, for which reason he was got declared hostile and cross-examined by the P. 3.
Thirdly, learned counsel for the appellant submitted that the complainant Nazir Ahmad P. W, 6.
Having been got declared hostile by the P. P. That would show that the witness had told a lie at one or the other stage and. Therefore, is not a reliable person and the prosecution cannot derive any benefit from his statement. He placed reliance on Habibullah etc. v. State (PLD 1969 SC 127). He further contended that blood-stained earth and empty P. 3, were recovered from the spot, according to the prosecution, on the day of occurrence i.e. 31st October, 1973. Blood--stained earth was sent to the Chemical Examiner on 2November, 1973. But empty was not sent until 4th November, 1973, when appellant licensed gun P. 4,, was produced before the Investigating Officer.
The contention of the- learned counsel for the appellant is that if empty P.
3. Had been recovered from the spot on the day the blood-stained earth was taken into possession i.e. 31st October, 1973, there was no reason to send the blood-stained earth on 2nd November, 1973, and not to end the empty P. 3, on the same day, but to delay until 4th November, 1973, when the gun P. 4, was taken into possession. In other words, the learned counsel contends that the empty was not recovered from the spot on 31st October, 1973, as alleged by the prosecution but later on when the gun was recovered on 4th November, 1973, the gun was fired and an empty sent to the Firearms Expert for a report that that matched with the gun. Learned counsel has referred to Muhammad Shaft etc. v.
Stare (PLD 1969 Lah. 869), Beekho alias Imam Bux etc. v. State (1973 P Cr. L J 896) to contend that empty recovered if not sent until gun recovered, no reliance can be placed on such a recovery.
Fifthly, the learned counsel submitted that according to the site plan Exh. P. C. The distance between the place from where the gun was fired and where the deceased fell and blood--stained earth recovered is 23 feet, whereas according to the medical evidence the wounds on the deceased had charted edges and the hair around them mere signed which could only happen if the gun was fired from a distance of 4 to 6 feet. It is therefore contended that the medical evidence contradicts the prosecution story and, therefore, oral testimony cannot be relied upon. He has placed reliance on Taj Muhammad v. Muhammad Yusuf etc. (PLD 1976 SC 234). Lastly, the learned counsel for the appellant contended that the alleged eye-witnesses are interested in the deceased the complainant Nazir Ahmad P. W. 6, being husband of the sister of the deceased, Muhammad Ashiq P. W.
7. Being brother, Inayat P. W. 8, being a nephew and Allah Ditta P. W. 10 being brother-in- law (Hamzuarf) of Nazir Ahmad P. W.
6. It is also contended that Allah Ditta P. W. 10 is not resident of the village where occurrence took place but of a different village at a distance of 15 miles and his story that he was called on the telephone on the day of occurrence is neither here nor there.
10. Learned counsel for the State has submitted that it is not true that the learned Sessions Judge has not found the motive proved. What the learned Sessions Judge has said at the end of para. 11 of the Judgment is that no pre-conceived motive has been proved against either of the two accused". The contention of the learned counsel for he State is that there was no question of pre-nd conceived motive as none was alleged by the prosecution. What was alleged was that the complai--nant party had gone for reconciliation and the accused had rebuffed them and fired the fatal shot at the deceased. He has further submitted that con-proof of motive does not automatically lead to destruction of the prosecution case, which has to be determined on the basis of evidence on record about the actual occurrence. He has relied upon Ahmad Nisar v. State (1977 SCMR 175). He then submitted that recording of the F.I.R. At the spot-besides that that has not been established except that the complainant Nazir Ahmad P.W.6 had made an unwarranted concession when his cross-examination had been adjourned for the next day with a view to his daughter settling in the house of the appellant, is not fatal to the prosecution case. He has referred to Nazir Ahmad etc. v. State (1976 P Cr. L J 993). He further submitted that the concession made the complainant, for which he was cross-examined by the P.P., would riot destroy his testimony altogether, especially when there are other eye-witnesses, namely, Muhammad Ashiq P.W. 7, Inayat P.W. 8 and Allah Ditta P.W. 10 to corroborate him on the material points. The mere fact, he next submitted, that the witnesses are related to the deceased is no ground to disbelieve them, especially when they would not have left out the real culprit to implicate the appellant. As regards the covert of empty P. 3 on 31st October, 1973, and not sending the same the Chemical Examiner until 4th November, 1973 when gun had been recovered, learned counsel submits that that would not be fatal to the prosecution case when the same stands established against the appellant through oral testimony of the eyewitnesses and corroborated by medical evidence. As regards the distance of 23 feet stated in the site plan and the charring of the wounds and singing, the learned counsel submitted that the site plan is rot a substantial piece of evidence (PLD 1976 SC 23-1) and that the eye-witnesses had not said that the distance was 23 feet, on the other hand, they had stated that that was couple of paces.
11. I have gone through the evidence with the assistance of the learned counsel for the parties and have heard them at length. I am not satisfied with the recovery of empty P. 3 allegedly made on 31st October, 1973, which was sent to the Fire-arms Expert on 4th November, 1973 when the gun P. 4 had also been recovered, that that corroborates the ocular testimony or supports the prosecution case for the reason that if the empty P. 3 had been recovered on 31st October, 1973 as alleged and the blood-stained earth too the same day, there was no justification to send the blood-stained earth to the Chemical Examiner on 2nd Novem--ber, 1973 and not to send the empty the same day. Sending of the empty P. 3 on 4th November 1973 when the gun P. 4 had also been produced on the said date does not inspire confidence. The contention of the learned counsel for the appellant on the point based on the quoted judgments by him is well founded. Therefore, this piece of evidence is ruled out from consideration.
12. As regards the recording of the statement Exh. P.A. Which forms the basis of the F. I. R. Exh. P. A/I, at the Canal Bridge by Altaf Ahmad Khan, A. S. I. P.W. 11, where according to him he was on patrol duty, is also doubtful --- as observed in many cases that where a statement is recorded at a place other than the Police Station, usually what happens is that the Investigating Officer in cases of grave nature reaches the spot and after making preliminary investigation records the F. I. R. In the present case, the complainant Nazir Ahmad P.W. 6 stated in his examination-in-chief that his statement was recorded at the Canal Bridge but under the fire of cross-examination, he stated that it was recorded at the spot. The statement termed as concession was not necessarily motivated to favour the appellant, who had thrown out his daughter from the matrimonial home and killed his brother-in-law. It may be true. It conforms to common practice as noticed by Courts.
But this fact alone would not lead to throwing out the prosecution case altogether. In none of the case quoted by the learned counsel for the appellant, it was ruled that if the F. I. R. Was recorded at the spot the prosecution case must fall through automatically. What was held was that the F. I. R.
Would lose its sanctity and if other evidence was not reliable, the prosecution would fail. Further that when F. I. R. Is recorded at the spot, the ocular and other evidence must be weighed more carefully lest the testimony which reiterates the contents of the story put up in the F. I. R. May be taken as conforming to the (real) first information and so true. It goes without saying that evidence recorded in Court has to be given careful consideration and more so when it has been preceded by faltering steps. What has to be done in this country, according to the famous phrase of the renowned Chief Justice Muhammad Munir, is to sift the grain from chaff. No doubt, it is a difficult task and hazardous too but there does not appear to be any escape because there is hardly a witness who tells the truth, the whole truth, nothing but the truth. Therefore, according to precedents prudence, the evidence on record has to be appraised and weighed with utmost care and caution. That is what is proposed to be done. The testimony of the complainant Nazir Ahmad P.W. 6, who has been declared hostile on account of his inconsistent statement about the place of recording of his statement Exh. P, A. Requires greater scrutiny. Something on the point has already been said. All the same, his testimony by itself may not be sufficient but taken into account with the fact that he is deposing against nobody but his own son-in-law when that might have led the latter to gallows and that he is supported by other eye-witnesses, that has some weight. Besides the complainant, there are eye-witnesses, namely, Muhammad Ashiq P.W. 7 and Inayat P.W.-8.
Both of whom no doubt are related to the deceased; the first being brother and the second being nephew, but the relationship would not mean that they would be lying in naming the appellant as the murderer of their relative leaving out the actual culprit. Nobody and especially the relatives as closed as these witnesses leave out the real murderer of their relation and implicate another with whom they have no enmity and none has been shown to be entertained by the witnesses as against the accused-appellant. They were natural witnesses to go for reconciliation. There is nothing on the record to warrant an inference that they were telling lies about the culpability of the appellant on a capital charge. The other eye-witness, Allah Ditta P.W. 10, however, lives in another village at a distance of about 15/96 miles from the place of occurrence. He stated that he had been called on telephone to come for the purpose of reconciliation. He is a nephew of the deceased not an elderly person who are usually called for such purposes. Then, his being sent for on telephone from one village lo another without particulars does not inspire confidence. I do not think that his evidence can be implicitly relied upon. A passing criticism that the witnesses could not have seen the occurrence from the place where they were shown to be standing in the site plan Exh. P. C. Is not well founded. The witnesses had consistently said that they had seen the occurrence and would be witnesses thereof if they had gone, as proved on record, for reconciliation and were confronted with hurling of abuses and firing of gun by the appellant. Having gone through the ocular evidence of P. W. 6 Nazir Ahmad, P.W. 7 Muhammad Ashiq, and P.W. 8 Inayat and giving the entire case a good deal o6 thought, I am not persuaded to believe, nor have I been able to come around to thinking, that the eye-witnesses had left out the killer of their kith and kin and falsely implicated the appellant. Their evidence is corroborated by blood-stained earth recovered from the spot and the medical evidence. The contention of the learned counsel for the appellant that the medical evidence contradicts the ocular evidence because there is charring of the wounds and singing of hair which can come about only when shot is fired from a distance of 4 to 6 feet whereas in the present case the distance from the place of firing to the place where the deceased was found lying dead and earth taken was 23 feet is not quite sound as that is founded entirely on the entry of distance in the site plan Exh. P. C. No witness had given this distance. On the other hand, the witness had said that the distance was couple of paces. Reliance of the learned counsel for the State on the case reported as Muhammad v. Muhammad Yusuf etc. Is quite apt. Moreover, the deceased might have 'run or dragged himself a few feet before he fell dead. Therefore, the contention that medical evidence contradicts the ocular testimony is not quite correct. Similarly, the contention that the learned Sessions Judge has held that motive was not proved is not quite correct. What the learned Sessions Judge has held was "that no pre--conceived motive has been proved against either of the two accused". This is quite correct because the complainant and his companions had gone to the house of the appellant's brother for reconciliation, not for committing crime of violence because they were empty-handed and not armed. The occurrence had come about, according to tae finding of the learned Sessions Judge, suddenly in the sense that the appellant and his brother did not want to let Mst. Rasulan Bibi settle in her matrimonial home. This was the cause of occurrence and it was this which was stated in the evidence. It cannot be said that there was no motive in the sense that them was no cause which led the appellant to commit the crime and 'the observation of the learned Sessions Judge taken as a finding on the point has not been correctly construed by the learners counsel for the appellant. Therefore, the contention is without basis and is repelled.
13. In view of what has been stated above, the appellant has rightly been found guilty, convicted and sentenced, His appeal is dismissed. As the appeal was not heard within the statutory period, the appellant was allowed bail on 6June, 1978. He shall surrender to his bail bond and be taken into custody to suffer the unexpired portion of his sentence.