Abdul Latif Khan, J.--Through the instant criminal jail appeal, the appellant, Sher Khan has called in question the judgment dated 02.12:2010 passed by the learned Additional Sessions Judge, Tank whereby he was convicted under Section 302(b), PPC and sentenced for life imprisonment and benefit Section 382-B, Cr.P.C. was extended to him.
2. The prosecution story, in brief, is that on 30.6.2010 at 0730 hours, the complainant, Rozi Khan lodged the report to the effect that on the said date at morning time, he was sleeping in his house when heard the report of fire shots. He came out of his house and saw his brother, Rashid Khan lying in injured condition in front of the house of Aziz Khan. He also saw running accused Sher Khan armed with a Kalashnikov. The complainant inquired from Naikum Khan and Ehsanullah, were present at the spot, v no disclosed that during arbitration, Sher Khan became annoyed and fired at Rashid Khan with his Kalashnikov. The occurrence was stated to have been witnessed by the complainant, Naikum Khan and Ehsanullah. The motive for the occurrence was stated to be unreported theft committed by the accused from the house of complainant party. On the report of the complainant, FIR No, 57 dated 30.6.2010 was registered under Section 302, PPC at Police Station Gomal, District, Tank.
3. After completion of usual investigation, complete challan against the accused/appellant was submitted in the learned trial Court where he was formally charged to which he did not plead guilty and claimed trial. In order to establish the guilt of the accused/appellant, the prosecution examined nine P.Ws. The statement of the accused/ appellant was also recorded under Section 342, Cr.P.C. He, however, neither appeared as his own witness in terms of Section 340(2), Cr.P.C. nor produced any evidence in his defence. After hearing the arguments, the learned trial Court convicted and sentenced the accused/appellant vide impugned judgment dated 02.12.2010.
4. The thrust of the argument of learned counsel for the appellant is that this is a case of no evidence. The complainant is not the eye-witness of the occurrence. There are material contradictions in the statements of P.Ws. The weapon of offence has not been recovered. One of the eye-witness has deposed against the complainant while the other has been abandoned which gives an impression that had he been examined, would have deposed against the complainant and under Section 129(g) of Qanun-e-Shahadat Order, 1984, an adverse inference has to be taken against the complainant. He contended that the motive for the crime has not been proved. The alleged theft committed by the accused/appellant and thereafter the arbitration conducted by the two eye-witnesses as arbitrators has also not been proved by the prosecution. He contended that the site-plan does not speak about the empties. He added that the complainant has made dishonest improvements in his Court statement. The contradictions with regard to the time of report have been stressed by the learned counsel with special reference to the post-mortem report which was conducted at 08.30 a.m. and report was made at 08.12 a.m. He referred to the injury sheet wherein six injuries have been shown and the perusal of post-mortem report shows that there are only three injuries which were not corresponding to the entry and exit wounds. He contended that as per report of the doctor, the deceased was capable of talking after the occurrence and as such dying declaration ought to have been recorded which extends benefit of doubt to the accused/appellant and prayed for the acquittal of the accused/appellant.
5. As against that, the learned counsel for the respondent/ complainant contended that the prosecution has proved the case beyond doubt. The minor contradictions pointed out by the learned counsel for the appellant are not to be considered. The occurrence has been admitted by the accused/appellant as no suggestion has even been given to the witnesses that the occurrence had not taken place in the mode and manner as alleged by the prosecution. He contended that the complainant has given the number of fire shots as 3/4, which is supported by the recovery of four empties and the medical evidence also supports the version of the prosecution to this extent.
He contended that PW Ehsanullah was not examined as he and Naikum Khan, were witnesses of same facts and was abandoned being unnecessary as the same facts have been narrated by Naikum Khan. He contended that the deceased succumbed to the injuries was shocked and unable to talk, so, dying declaration could not be recorded and mere opinion of the doctor to this effect would not be of binding nature under the law. He contended that Naikum Khan, PW has fully supported the statement of Rozi Khan, complainant, duly corroborated by medical evidence and the accused/appellant has not given any suggestion to the witnesses about the motive.
6. The learned A.A.-G. appearing on behalf of the state supported the arguments advanced by the learned counsel for the complainant. He contended that four empties were recovered from Point No, 2 shown in the site-plan which negates the argument of learned counsel for the accused/appellant that no recovery of empties has been shown in the site-plan.
7. We have given our anxious thought to the arguments addressed at the bar and carefully perused the record.
8. Rozi Khan, complainant, while deposing as PW-5 has supported the version made in the FIR. He advanced the facts regarding the occurrence which was a natural phenomenon as he heard fire shots, came out of his house and rushed towards the direction of firing, where he saw his brother Rashid Khan deceased lying in injured condition in front of the house of one Aziz Khan. His version is that he saw the accused/appellant who decamped from the spot wearing red colour clothes, armed with a Kalashnikov on the western side of the place of occurrence towards the graveyard.
He inquired from the eye-witnesses/ arbitrators, Naikum Khan and Ehsanullah, sitting for a decision to be arrived at, with regard to the theft of bicycle, committed by the accused, which is shown to be a motive for the occurrence, and both of them disclosed about the firing of accused/appellant at the victim and then he took his brother, deceased, to civil hospital, Tank, however, the deceased expired in the way. He made report to this effect in the shape of murasila, Ex.PA. This witness was cross-examined by the accused/ appellant but nothing favourable to him could be extracted from the mouth of the complainant, rather the suggestions given to the complainant tantamount to the admission of the occurrence as well as its mode and manner stated by the prosecution.
9. In support of the prosecution, PW-6, Naikum Khan appeared who had witnessed the occurrence as he was busy in arbitration between the parties with regard to the theft allegedly committed by the accused/appellant. He deposed that he alongwith Ehsanullah was trying to patch up the matter and when the decision was announced by them, the accused/appellant flared up, rushed to his house, came back with a Kalashnikov and opened fire upon the deceased. He further deposed that the accused/appellant was dealt with by him with hot words and directed him to leave the site. He supported the version of complainant, Rozi Khan, brother of the deceased,- that he disclosed the incident to him, however, accused was decamping from the spot. He further stated that Ehsanullah, the other eye-witness/arbitrator, accompanied him in the process of arbitration, after the occurrence, took the injured to the hospital through a datsun but in the way, the victim expired and Rozi Khan lodged the report about the death of his brother. He was subjected to cross-examination by the accused/appellant, however, no suggestion regarding the commission of offence on the date and time and the mode and manner as alleged by the prosecution, has been given to the witness by the accused/appellant. No material contradiction could be pointed out inter se the complainant and the eye-witness. The trend of cross- examination shows that the accused/appellant has impliedly admitted the occurrence and the commission of offence in the mode and manner and on the date and time given by the prosecution.
10.Shama Jan, SI (PW-7) was entrusted with the investigation. On the same day, he proceeded to the spot, summoned the eye-witnesses and on their pointation, prepared the site-plan alongwith its foot notes. He took into possession blood stained pebbles and earth from the place of occurrence and sealed it in Parcel No, 1 which is Ex.P-1. He took into possession 4 empties of 7.62 bore which were lying in scattered position from the place of accused, P-2 and affixed 3/3 stamps by the word "HB" on the other side of the parcel vide memo. Ex.PC. He took into possession the shalwar, P-3 of sky colour having blood belonging to deceased Rashid Khan and packed the same into Parcel No,
3. The house of the accused was search by him but no incriminating articles were recovered. He recorded the statements of P.Ws. The accused was absconding, so, he applied for warrant under Section 204 Cr.P.C., Ex.P.W.7/1. Later on accused was arrested, interrogated and his statement recorded. He sent Parcels No, 1 and 3 to the F.S.L, the report of which came in positive and after completion of investigation, the case file was handed over to the then SHO for submission of challan in the Court. The accused/appellant cross-examined this witness in a cursory manner.
All that stated in examination-in-chief has gone unrebutted, as no specific cross-examination made on this witness by the accused/appellant, which amounts to admission of the occurrence and the mode and manner in which the same took place.
11.The medical evidence fully supported the version of the prosecution. The post-mortem report speaks about three entry and three exit wounds, total six in number on the body of the deceased which amounts to corroboration of the version of complainant. The doctor, who conducted the post-mortem, was examined as PW-8, who has given the details of wounds comprising three fire- arm entry and three exit wounds. In cross-examination, the doctor has given opinion about the condition of deceased of being capable to talk for some minutes after receiving injuries. This observation of the doctor, being opinion, has no binding effect as the same is based upon his personal observation and that too, for some minutes which could not be termed sufficient for getting recorded the dying declaration as pointed out by the learned counsel for the accused/appellant. The same, in such scenario, was humanly not possible as the deceased expired on the way to hospital. However, the post-mortem report has been fully corroborated through statement of this P.W, which supports the version of the prosecution in toto and makes out a case against the accused/appellant to connect him with the commission of offence.
12.The recovery of blood stained pebbles alongwith four empties of 7.62 bore, in a scattered position made from the place of accused/appellant has boon proved by production of witnesses, PW-4 and PW-7, whose statements remained unshattered, as no material question put to them during cross-examination. The report of the FSL with regard to the Parcels No, 1 and 3 was positive.
Thus the recovery stands established against the accused/appellant.
13.The accused/appellant, Sher Khan was examined under Section 342, Cr.P.C. He has replied to questions put to him by the prosecution but except for simple denial, no specific plea has been taken by him.
14.The ocular account furnished by the P.Ws is fully supported by the medical evidence. The stance of learned counsel for the accused/appellant that improvements have been made contrary to the FIR, holds no water as the contents of the FIR have been fully supported by the complainant, eye-witness, Investigating Officer and medical evidence. The evidence produced by the prosecution is of cogent and confidence inspiring nature. The witnesses have not contradicted each other. The occurrence and identification of the accused/appellant stand proved. The independent eye-witness having no relation with the complainant has fully supported the version of the FIR. The presence of the accused/appellant on the spot is established. The FIR has been lodged promptly after about one hour of the occurrence despite the distance of 16/17 kilometers in between the spot and the hospital, so possibility of consultations and deliberations is also ruled out. Being broad daylight occurrence, there was no chance of misidentification as the parties belong to the same vicinity. Besides, the motive of the theft of bicycle exists between the parties and it is a case of single accused where substitution is a rear phenomenon. The accused/appellant being jobless and penniless could not be implicated and charged falsely by the complainant for any benefit. His financial position can be determined from the conduct that he is unable to engage a counsel to defend him in a case where his life is at stake and a pauper counsel has been engaged for him by the Court in the instant criminal jail appeal preferred by him.
So the question of false implication does not arise.
15. The trial Court has properly evaluated the evidence produced by the prosecution who succeeded to prove its case against the accused/appellant beyond any shadow of doubt, and has rightly, held the accused/appellant guilty of qatl-e-amd of deceased Rashid Khan under Section 302, PPC. However, taking lenient view with special reference to the age of the accused and being first offender, normal sentence has not been awarded, rather he has been convicted and sentenced under Section 302(b), PPC for life imprisonment. Keeping in view the financial position of the accused/appellant, he was not burdened with fine or payment of compensation or diyat amount to the legal heirs of the deceased. However, benefit of Section 382-B, Cr.P.C. was extended in his favour.
16. For the aforestated reasons, we are of the considered view that the impugned judgment does not suffer from any misreading and non-reading of evidence, or from any legal or factual infirmity calling for interference by this Court. We, therefore, dismiss the instant criminal jail appeal by maintaining the conviction and sentence awarded to the accused/appellant by the learned trial Court vide impugned judgment dated 02.12.2010.