ASSADULLAH KHAN CHAMMKANI, J.- Appellant Akhtar Ali, was tried for murder of Noor Dad Ali and at the conclusion of trial, the learned Additional Sessions Judge-VII, Peshawar vide impugned judgment dated 30.07.2011 convicted and sentenced him under section 302 (b) PPC to undergo life imprisonment and to pay Rs.1,00,000/-, as compensation to LRs of deceased, in terms of section 544-A Cr.P.C., in case FIR No.201, dated 13.06.2008, registered under section 302 PPC at Police Station Mathani, Peshawar.
2. Through the instant appeal, the appellant has questioned his conviction and sentence, while through connected Cr.R. No.134-P/2011, petitioner/complainant Raz Khan is seeking enhancement of sentence of the convict from life imprisonment to normal penalty of death. As both, the appeal as well as criminal revision petition, are stemming out of the same judgment of the learned Trial Court mentioned-above, therefore, are going to be disposed of through this common judgment.
3. On 13.06.2008 at 00.05 hours, complainant Raz Khan (PW.4), in company of dead body of his relative Noor Dad Ali, reported in Police Station Mathani to the effect that on the fateful night after offering "Issha prayer" he along with the deceased and his cousins PW Azad Sher was on the way to a shop for purchase of some commodities and when reached the crime spot, Akhtar Ali (appellant-convict herein), duly armed with Kalashnikov, opened fire at the deceased with the intention to do him away, as a result, he was hit and died on the spot. Motive behind the occurrence is stated to be a brawl inter-se the appellant and deceased over drawing picture of Bilal, the younger brother of the deceased, some fifteen days prior to the incident. In addition to complainant, the incident is stated to have witnessed by PW Azad Sher. Riaz Khan S.I. (PW.8), recorded report of the complainant into FIR Exh.PA. He also prepared injury sheet and inquest report of the deceased Exh.PM/1 and Exh.PM/2 and shifted his dead body to the mortuary for autopsy under the escort of Constable Bahar Ali.
4. Dr. Sahibdad (PW.7) conducted postmortem examination on the dead body of the deceased Noor Dad Ali and found the following injuries:
1. Firearm entry wound on right side front of chest 1x 1 c.m. in size, 1.5 c.m. from midline and 2 c.m below collar bone.
2. Firearm exit wound on left side front of chest, 1x 1 c.m. in size, 3 c.m. from midline, 1c.m below collar bone.
3. Firearm entry wound on left side front of neck at the base.
4. Firearm entry wound on left side front of abdomen, 3 x 2 c.m. in size, 1 c.m left to umbilicus.
5. Firearm exit wound on right side back of chest, 1.5 x 1 c.m in size, 2 cm from midline, 6 c.m. below base of neck.
6. Firearm exit wound on right back chest, 2 x 1 c.m in size, 10 c.m from midline and 11 c.m below base of neck.
7. Firearm exit wound on right back chest, 1.5 x 1 c.m. in size, 6 cm right to injur No.6.
8. Firearm exit wound on right side top part of buttock, 1 x 5 c.m in size, 3 c.m from midline, 2 cm above iliac crest, 1.5 x 1 cm above wrist.
9. Firearm entry on left back forearm 1x1 cm in size, 1 cm above wrist.
10. Firearm exit wound on front of left forearm, 3x 2 cm in size, 14 cm above wrist.
On external examination, thorax wall, ribs, cartilages, pleurae, larynx, trachea, right lung, pericardium, heart, blood vessels, peritoneum, diaphragm, small intestines were found injured.
Stomach was healthy and found empty.
As per opinion of the medical officer, the deceased died due to injuries to his heart and both lungs due to firearm injuries.
Probable time between injury and death has been given as immediate while inter-se death and post mortem as 10 to 14 hours.
5. Hashmatullah Khan Inspector (PW.6) conducted investigation in the case. He proceeded to the spot, prepared site plan Exh.PB at the instance of eyewitnesses. During spot inspection, he secured bloodstained earth Exh.P.1 from the place of the deceased vide memo Exh.PW.2/1 and five empties shells of 7.62 bore Exh.P.2 from the place of the appellant of as well as an electric bulb of 200 Watt Exh.P.3 vide recovery memo Exh.PC. He also took into possession the last worn bloodstained garments of the deceased, recorded statements of the PWs and on his transfer, handed over the investigation to Shaukat Ali ASI PW.3, who initiated proceedings under sections 204 and 87 Cr.P.C. against the accused/appellant, placed on file FSL report Exh.PZ qua bloodstained articles and on completion of investigation, submitted challan in terms of section 512 Cr.P.C. against the accused/appellant.
6. On 15.05.2010, accused/appellant was arrested by Ameer Sultan SHO (PW.9) vide arrest Card Exh.PW.9/1, whereafter supplementary challan was submitted against him before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as ten witnesses. After closure of the prosecution evidence, statement of appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath as his own witness under section 340 (2) Cr.P.C. or to produce evidence in defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced the appellant as referred to above.
7. Learned counsel for the appellant argued that incident is nocturnal and complainant has not disclosed about any source of light on the spot, that's why the occurrence has been reported with considerable delay after consultation and deliberation and the appellant has been charged on mere suspicions; that the motive alleged remained unproved; that alleged eyewitnesses i.e. complainant Raz Khan and PW Azak Sher are closely related being his cousins, therefore, are interested witnesses, who have badly failed to establish their presence on the spot that's why their testimony is neither consistent with each other on material aspects of the incident nor does it find corroboration from other circumstances of the case to inspire confidence, therefore, conviction cannot be recorded on the basis of such shaky and scanty evidence; that escape or let off the complainant and PW Azad Sher, being closely related to the deceased and at the mercy of the appellant in close proximity, is a disturbing circumstance which creates doubt in a prudent mind; that medical evidence also belies the ocular account; that deceased was a hardened and desperate criminal and was done to death while committing offence wearing a borqa and the factum of wearing borqa has also been admitted by the complainant in his statement; that the crime empties have not been sent to the FSL for chemical analysis; that appellant has neither confessed his guilt before any competent court of law nor anything incriminate has been recovered from his direct or indirect possession nor has made any discovery; that investigation in the case has been conducted dishonestly as the appellant was already arrested in a case FIR NO.185 dated 15.05.2010 registered under sections 324/353 PPC read with 5 Explosive Substance Act and 7 ATA as well a 13 A.O. Police Station Mathani, but this factum has deliberately and intentionally not brought by the Investigating Officer on record of the instant case, which amounts suppression of facts; that prosecution case is pregnant of doubts, benefit of which was to be extended to the appellant, but the learned Trial Court by not appreciating the evidence in its true perspective reached to an erroneous conclusion by holding the appellant guilty of the offence, hence, the impugned judgment is liable to be set at naught.
8. Conversely, learned counsel for the complainant contended that appellant is directly and singularly charged for murder of the deceased by the eyewitnesses; that during spot inspection besides recovery of bloodstained earth and crime empties of 7.62 bore, the I.O. has also recovered 200 Watt electric bulb, hence, question of mistaken identity does not arise; that keeping in view the time of occurrence and the place of incident a backward area of Mathani, at a considerable distance from the Police Station Mathani, the non-availability of transport because of the law and order situation in that particular area, delay in lodging report is not fatal for the prosecution case; that both the eyewitnesses have furnished true account of the incident corroborated by medical as well as circumstantial evidence and the defence has failed to create any dent in their testimony; that it was quite easy for the eyewitnesses to also charge the appellant for attempting at their lives, but they did not and narrated what they witnessed, which manifest their truthfulness; that admission of complainant about wearing of "Borqa" by the deceased at the time of incident in his cross-examination is merely a pen slip/clerical mistake of trivial nature which would not affect the prosecution case; that no FIR or any judgment of the court has been brought on record to prove the deceased as hardened or desperate criminal; that prosecution has proved the guilt of the appellant through cogent and confidence inspiring evidence and the learned trial court has rightly held him guilty of the offence. He, however, contended that when the appellant was proved guilty, the learned Trial court ought to have awarded him normal penalty of death. He sought dismissal of the appeal and requested for enhancement of sentence of the appellant.
9. Learned A.A.G. adopted the arguments of learned counsel for the complainant.
10. We have considered the exhaustive arguments of learned counsel for the parties and learned AAG for the State and perused the record with their able assistance.
11. On the face of record, the occurrence is nocturnal taken place in the month of June, 2008, after "Issha prayer" time. Albeit, complainant Raz Khan (PW.4), has not specifically stated about the source of light in First Information Report, but as manifest from the site plan Exh.PB, the crime venue is situated in a street of Mohallah Lalu Khel, near the house of appellant, where at the relevant time, the deceased alongwith complainant Raz Khan PW.4 and Azad Khan PW.5, was on the way to a shop situated therein, for purchase of some commodities. On the same night, the Investigating Officer proceeded to the spot, recovered an electric bulb of 200 Watt installed on the said shop.
The appellant and eyewitnesses are co-villagers inter-se and were well known to each other prior to the incident, therefore, in these eventualities, question of mistaken identity does not arise. Mere non-mentioning of electric bulb in the FIR, would not damage the prosecution case because mentioning of each and every detail in the FIR is not essential. The crime spot is situated in Mathani, a backward area lying at a considerable distance of more than 25 Kilometers from Police Station Mathani. In his court statement complainant deposed that first the dead body of the deceased was taken to the house, from where it was shifted to Police Station. To arrangement a conveyance in the backward area of Mathani, that too at night time coupled with the distance inter-se the spot and Police Station as well as the law and order situation in that part of the province because of the terrorists, delay in lodging report, would not be fatal for the prosecution case.
12. Both Raz Khan and Azad Khan, the eyewitnesses of the incident have directly and singularly charged the appellant for murder of the deceased. Not an iota of evidence has been brought on record to prove their previous ill-will or animosity against the appellant to suggest their promptness to falsely implicate the appellant and allow the real culprit to go scot-free. During trial, complainant Raz Khan appeared as PW.4 wherein he reiterated the same story as set forth by him in his initial report. Similarly, Azad Sher appeared as PW.5. Both have furnished the ocular account of the incident and they are consistent with each other on all material aspects of the incident. They have been subjected to lengthy and comb searching cross-examination by the defence, but nothing favourable could be extracted from their mouths. The bloodstained earth secured from the spot and bloodstained garments of the deceased were sent to the FSL, report whereof is in positive, which corroborate the ocular account that the deceased was done to death on the same place as alleged by the eyewitnesses. Similarly, recovery of crime empties of 7.62 bore from the place of the appellant; corroborate the ocular account that the weapon used was Kalashnikov as stated by complainant in his report. Medical evidence i.e. autopsy report of the deceased prove murder of the deceased with fire arms. Similarly, directions of injuries on the person of the deceased keeping in juxtaposition with the places of the appellant and that of the deceased as shown in the site plan further lend support to the prosecution version. Both the eyewitnesses through their trustworthy and confidence inspiring testimony corroborated by medical and circumstantial evidence have successfully proved their presence on the spot with the deceased at the time of incident. They have not exaggerated the charge and have furnished the true account of the incident. It was much easier for them to charge the appellant for attempting at their lives too, but they did not, which shows their honesty and truthfulness, as in routine, we have observed that in such like incident the witnesses try their level best to implicate the accused under so many offences, possible for them.
There seems no material contradiction in the statements of the eyewitness which may negate the basic fabric of the prosecution story. There may be some minor discrepancies in their statements but such like discrepancies are inbuilt proof of truthfulness of the PWs that they have come forward with natural account of the events, without being tutored or any fabrication. By now the principle of falsus in uno falsus in omnibus, has been done away with. Rather the Courts while appreciating evidence, apply the principle of sifting the grain from the chaff. It is settled law, that those contradictions in the prosecution evidence are considered as fatal, which totally negates the prosecution case. Mere minor discrepancies, occurring in the statements of the PWs, which are otherwise natural one would not be considered as fatal. Moreover, when the witnesses are subjected to lengthy and searching cross-examination by a skillful hand, such discrepancies do creep in from the simple and rustic villagers, who are never used to such tricky questions nor are mindful about the nature and consequences of answers thereof. The Courts are never supposed to decide the matter in a mechanical manner by taking such discrepancies as a tool to dislodge a genuine case. Rather, the Courts are supposed to go in depth of the evidence and assess it at the touch stone of natural course of events and human conduct in normal pursuit of the society by scrutinizing its intrinsic worth and if comes to the conclusion on their own assessment that such an occurrence had in fact taken place, it costs an obligation to redress the grievance of aggrieved party. Although, accused is considered as a beloved child of the Court but at the same time the aggrieved party is also not to be treated as an alien as, it is he, who approaches the Court for redressal of his grievance against aggression of accused.
13. As stated earlier, the appellant is directly and singularly charged by both the eyewitnesses who have no previous enmity or ill will with the appellant to falsely implicate him by allowing the real culprit to go scot-free. Both have furnished trustworthy, confidence inspiring and consistent evidence, thus, in such like cases, substitution of real culprit is a rare phenomenon in the system of criminal justice. Reference in this regard can be made to case titled, "Allah Ditta Vs the State" (PLD 2002 Supreme Court 52) and case titled, "Muhammad Iqbal Vs the State" (PLD 2001 Supreme Court 222.
14. The arguments of learned counsel for the appellant that both the eyewitnesses are closely related to the deceased and being interested, their testimony cannot be relied upon, is unpersuasive, because on mere close relationship of a witness his testimony cannot be discarded provided his testimony is trustworthy and confidence inspiring corroborated by other strong pieces of circumstantial evidence. The Hon'ble Supreme Court in case titled "Dildar Hussain Vs Muhammad Afzaal alias Chala" (PLD 2004 Supreme Court 663) while dilating upon the credibility and reliability of closely related witness in Paragraph No.11 of the Judgment observed as under:- "Learned counsel appearing for respondent No.3 contended that as far as this witness is concerned, he is also related to the complainant party as it has been admitted by P.W. Dildar Hussain in his cross-examination. We inquired from him as to whether such question was put to him his answer was in negative. It may be noted that firstly mere relationship with the complainant party is not sufficient to discard evidence unless it is proved that he has ulterior motive to involve the respondent No.3 in the commission of the offence".
15. In case titled, "Muhammad Mansha Vs the State" (2001 SCM R 199), the Hon'ble Supreme Court defining interested witness held the following :- "An interest 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".
We would like to refer here that principles for accepting the testimony of even an interested witness are set out in case titled, "Nazir Vs the State" (PLD 1962 SC 269).
16. In this case, as stated earlier, the ocular account furnished by the eyewitnesses is worthy of credence, confidence inspiring, credible and irrefutable, thus, has rightly been considered by the learned trial Court. The prosecution has failed to bring an iota of evidence to prove any ulterior motive of the eyewitnesses towards the appellant/accused to falsely implicate him in the case.
17. We have gone through the entire cross examination of complainant Raz Khan PW.4. His positive reply to a suggestion qua wearing of "Borqa" by the deceased at the time of incident, clearly seems to be a clerical mistake, keeping in juxtaposition that suggestion with the subsequent suggestions put to him to prove the deceased as hardened and desperate criminal, which he has answered in negative, but due to clerical mistake the first suggestion has been written as "it is correct". For convenience that particular part of the cross-examination of complainant is reproduced below:- "It is correct that at the time of receiving injuries the deceased was in "Borqa" wearing by him. It is incorrect to suggest that deceased Noordad Ali was involved in so many cases of dacoity. It is also incorrect to suggest that deceased was a well known thief of Mathani area and was involved in so many case of theft. It is also incorrect to suggest that deceased was done to death by some unknown culprits while making theft/snatching amount from the people by deceased while wearing Burqa.".
From thorough perusal of the above suggestions, we are of the firm view that the first suggestion had also been answered by the complainant in negative keeping in view the last suggestion mentioned above that "It is also incorrect to suggest that deceased was done to death by some unknown culprits while making theft/snatching amount from the people by deceased while wearing Burqa". This suggestion clearly proves that complainant has denied the wearing of borqa by the deceased at the time of incident. Had it been so, he would have mentioned the same in his report, in his examination in chief or by scriber of report in inquest report of the deceased or medical officer who conducted autopsy on the dead body of the deceased. The factum of non- wearing of borqa by the deceased can also be affirmed from the statement of eyewitness Azad Sher wherein he has denied the suggestion of defence qua wearing of borqa by the deceased.
Moreso, for the sake of arguments whether the deceased was wearing a "Borqa" or not, would not advance the case of defence, because it was the appellant who committed the crime and his identity was an essential factor and not the deceased. So for as the effort of defence to prove the deceased as hardened and desperate criminal is concerned, the same proved futile because except mere suggestions, which too have been denied by the PWs, neither any FIR whatsoever from any Police Station of the entire province nor any person from any locality has been produced to justify this plea of defence.
18. So far as non-sending of crime empties to the FSL for chemical analysis is concerned, as the appellant soon after the occurrence went into hiding and make impossible the recovery of crime weapon, therefore, in absence of crime weapon non-sending of crime empties to the FSL, particularly, in case of a single accused, where the number of accused has already been determined and against whom sufficient substantive evidence of unimpeachable character is available, would not damage the prosecution case because accused cannot be allowed to get premium of his absconsion. In case of availability of sufficient direct/substantive evidence, mere non-sending of crime empties, which is a corroborative pieces of evidence, would not destroy the prosecution case. Record divulges that proceedings under sections 204 and 87 Cr.P.C. were initiated and completed against the appellant. He has not furnished any plausible explanation for his noticeable abscondence, therefore, keeping in view the peculiar facts and circumstances of the instant case, his abscondence would be considered a corroborative piece of evidence against him.
19. For the foregoing reasons, we have reached to an irresistible conclusion that prosecution has successfully proved the guilt of the appellant up to the hilt through cogent and confidence inspiring evidence and the learned Trial court while taking into consideration each and every aspect of the case in light of the available evidence has rightly held him guilty of the offence. As the prosecution has not produced said Bilal in support of motive, on whose pictures a brawl took place between the deceased and appellant, therefore, considering the same as a mitigating circumstance, we deem it consider that punishment of life imprisonment as awarded by the learned Trial Court, would be sufficient to meet the ends of justice.
20. Resultantly, we dismiss the appeal as well as connected Cr.R No.134-P/2011, titled, "Raz Khan Vs Akhtar Ali etc" and maintain the conviction and sentence of the appellant recorded and awarded by the learned trial court vide impugned judgment dated 30.07.2011.
21. Before parting with the judgment, we deem it appropriate to mention here about slackness of the Investigating Agency in their official obligations while dealing with investigation of the case.
Case FIR No.185 dated 15.05.2010 registered under sections 324/353 PPC read with Explosive Substances Act, 7 ATA and 13 A.O. Police Station Mathani, was produced before us by learned counsel for the complainant during his arguments, wherein the appellant has been shown arrested on the spot on the same date, in the aforesaid case in encounter with the police party and from his possession, arms and ammunitions as well as explosive materials have also been shown recovered. The aforesaid FIR, has not been exhibited before the learned Trial by the prosecution, rather formal arrest of the appellant has been shown in the instant case by the local police, without referring to the arrest of the appellant in the aforesaid encounter case, which indicates towards slackness of the police in their officials duties and amounts to suppression of facts from the court, thus, is highly deplorable. Copy of the judgment is sent to the Additional Inspector General Police (Investigation), Peshawar, for looking into the matter and curbing such practice in future.