' ABDUL LATIF KHAN, J.---Through the instant appeal under section 410 Cr.P.C., the appellants namely Imam Bakhsh and Khuda Bakhsh have called in question the judgment dated 10-12-2011 passed by learned Additional Sessions Judge-VI, D.I.Khan vide which they were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a compensation of Rs,1,00,000 each under section 544-A, Cr.P.C. Or in default, to further suffer six months S.I each and benefit of section 382-B, Cr.P.C. Was extended in their favour.
2. The prosecution story in brief is that on 17-3-2011 at 0630 hours, complainant Mst. Amina Bibi reported the matter to the local police to the effect that last night, she along with her husband, three sons and three daughters were sleeping in the room. At about 1 a.m. (midnight), on barking of dog, her husband went out and while opening the door of room, asked that who was there and in the meanwhile firing started, as a result of which, her husband Mushtaq and son Sajid died on the spot. When came out of Kotha, the complainant witnessed accused running from the spot. The occurrence was stated to have been witnessed by brother-in-law of the complainant namely Ghulam Farid.
3. After completion of usual investigation, complete challan against the accused was submitted under section 512, Cr.P.C. However, on arrest of the appellants, supplementary challan was submitted against them. They were formally charged to which they did not plead guilty and claimed trial. In, order to establish the guilt of the appellants, the prosecution examined eight witnesses. The appellants were also examined under section 342, Cr.P.C. Wherein they professed innocence and false implication. However, they neither examined themselves on Oath as required under section 340(2) Cr.P.C. Nor produced any evidence in their defence. After hearing the arguments, the learned trial Court convicted and sentenced the appellants as mentioned above vide impugned judgment dated 10-12-2011.
4 Mr. Ghulam Hur Khan Baloch learned counsel for the appellants contended that the occurrence took place at midnight time at 1 a.m. On 17-3-2011 and the report was made at 0630 hours on the spot which is a delayed report and has not been explained. He contended that motive for the offence, as per the prosecution version, is that brother of deceased Mushtaq namely, Shah Jehan, had abducted the daughter of appellant Khuda Bakhsh, which does not stand to reason, as the deceased and his brother were residing in different houses and the proper person was Shah Jehan to be attacked, in order to take revenge instead of Mushtaq and as such the prosecution story is not plausible. He contended that the complainant Mst. Amina Bibi is the sole witness, whereas Ghulam Farid has been named as witness, but he has not seen the occurrence. He added that the case of the prosecution hinges upon the statement of Ghulam Farid and complainant which are contradictory to each other on various points. He referred to the recovery memo regarding 26 empties of 7.62 bore, bulb; one empty of 303 bore and bloodstained clothes which is witnessed by Ghulam Farid, however, when deposing as PW in the Court, he has not stated about the existence and recovery of bulb. He contended that identification in the instant case is doubtful, for the reason that it was midnight occurrence and the existence of bulb has not been proved by the prosecution.
He added that the medical evidence is not corroborating the ocular version. On one hand, Ghulam Farid has been shown to have pointed out the place of occurrence for preparation of site plan to the Investigating Officer, while on the other hand, he was shown present in the hospital and has been shown to have received the dead bodies from the hospital and the postmortem report of deceased Sajid was prepared at 9 a.m. Whereas postmortem report of Mushtaq deceased was prepared at 10 a.m. And as such the presence of Ghulam Farid is highly doubtful and in connection with time, his presence at both the occasions is not humanly possible. He added that the expert report has not corroborated the prosecution evidence, as three weapons i.e, two 7.62 bore rifles and one .303 bore rifle were shown to have been used in the occurrence. Mst. Amina Bibi complainant appeared as P.W.2 whereas Ghulam Farid has been examined as P.W.3. The statements of both the witnesses are contradictory inter-se. Mst. Rehmat Bibi and Mst. Mumtaz Bibi, the other natural witnesses present inside the house at the time of alleged occurrence have been abandoned by the prosecution. He added that the prosecution has not disclosed the source to inform the police about the occurrence. He contended that the report has been prepared after preliminary investigation and as such the ocular account in the instant case is not plausible. He contended that Ghulam Farid has also deposed about the existence of a guest, who was sleeping in the courtyard of his house at the time of occurrence, but he has not been produced. He contended that the evidence collected by the prosecution is not supporting the version narrated by the complainant and the judgment passed by the trial Court is not supported by law.
5. As against that, the learned A.A.G. Appearing for the State and Mr. Farooq Akhtar, counsel for the complainant contended that the presence of the complainant at the time of occurrence in the house and the story advanced by the prosecution is a natural phenomenon. It was contended that the husband and son of the complainant were brutally murdered and minor discrepancies, if any, would in no way damage the case of prosecution as pointed out by learned counsel for the appellants. It was argued that the site plan was prepared at the instance of complainant as well as Ghulam Farid and the argument of learned counsel for the appellant that the site plan has been prepared on the pointation of only Ghulam Farid is not correct. He contended that the F.S.L report was in positive and has confirmed the version of the prosecution. The daughters of deceased Mushtaq namely, Mst. Mumtaz Bibi and Mst. Rehmat Bibi were not necessary to be produced and the prosecution in every case is not bound to produce all the witnesses and they have been rightly abandoned, as the same would amount to repetition, because mother of the ladies and Ghulam Farid have already deposed in favour of the prosecution. They referred to the statements of appellants recorded under section 342 Cr.P.C., wherein they replied to question No,14 in affirmative to the effect that they want to produce evidence in their defence but have not produced the evidence nor. Deposed themselves under section 340(2), Cr.P.C. Which goes against them, as they have nothing to produce in their defence. It was contended that a plea was taken by the defence in cross examination that on the night of occurrence, the transformer of the village was not in working form, however, none was produced from the locality or electricity department in support of this version. They supported the judgment of the trial Court.
6. We have given our deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. Perusal of the record shows that Mst. Amina Bibi complainant reported the matter to police vide Ex.P.W.2/1 to the effect that on 17-3-2011 at 0630 hours, her husband Mushtaq and son Sajid were done to death by the accused. The occurrence was slated to have been witnessed by her as well as Ghulam Farid, brother of the deceased. The F.I.R. (Ex.PA) was registered against the accused.
Appellants Imam Bakhsh and Khuda Bakhsh were arrested on. 21-3-2011 whereas accused Ashraf and Jalaluddin alias Choocha sons of appellants are still absconding. The complainant deposed before the Court as P.W.2 and has supported the version of the F.I.R. P.W.3 Ghulam Farid was also examined in support of prosecution case. The statements of both the witnesses were corroborating each other and the case of prosecution. Though the complainant has not specifically given role to any of the accused for the murders of her husband and son, but all the four accused were charged by her for firing at her husband and son (deceased). However, in cross examination while appearing as P.W.2. The appellants have put specific questions to the complainant, wherein she has categorically charged the accused for the injuries received by the deceased at the hands of accused Ashraf, Imam Bakhsh, Jalaluddin alias Choocha and Khuda Bakhsh. She added that fireshots hit her husband and son who was sitting on the ground when his husband was fired at and he was also fired at by the accused. The explanation in the statement of complainant was made-in reply to the question put by the appellants in cross-examination which fully supports the version of the prosecution. Apart from this, the investigating officer has also narrated the version in support of the prosecution case and nothing adverse could be extracted from the mouth of any witness by the appellants, during the course of cross examination and as such the ocular account fully supports the version of prosecution. Minor contradictions pointed out by learned counsel for the appellants and tried to get benefit of these contradictions, were not material, but natural and could not be considered to disbelieve the version of the prosecution, which is otherwise proved through reliable evidence.
8. So far as the delay in making the F.I.R. Is concerned, the occurrence took place at midnight and the report was made at 0630 hours on the spot, as the police had attracted to the spot in the morning. A rustic villager, illiterate lady having lost the lives of her husband and son, having no source of contact with the police through telephone or conveyance at midnight time would not be expected to lodge the report within few moments and it is but natural that the occurrence was reported to the police on the spot when they attracted there on the information received and as such the delay cannot be considered as vital in such state of affairs nor the report on the spot would damage the case of prosecution in any way, because all the things were dealt witty in a natural manner and no artificial touch seems to have been given to the facts of the case.
9. The question of identification would not arise in the instant case, for the simple reason that the complainant has deposed that the accused are her co-villagers and are known to each other.
Even otherwise, in rural society, the co-villagers C use to be on visiting terms to the houses of each other. As per the site plan, at points D and E, the bulb was lit, in the light of which, the accused were identified by the complainant. She was shown at point-3 and the accused were present at points 9, 10, 11 and 12 at the time of firing and later on she shifted to point 3-A while the accused shifted to points 8-A, 9-A, 11- A and 12-A. Both the points are visible and at a distance of 6/8 paces and in presence of light, the question of identification cannot be termed as doubtful and no benefit can be given to the appellants with regard to the identification. Apart from this, Ghulam Farid, eye- witness, has also seen the accused who was shown at point-13 and later on at point 13-A which corroborates the version of the complainant about the presence of the accused and firing made by them at the time of occurrence. The site plan was prepared at the pointation of the complainant and said Ghulam Farid and as such there is no contradiction to this effect and prosecution succeeded to prove the case in the light of site plan.
10. So far as the recovery is concerned, recovery memo Exh.P.W.3/2 shows that 26 empties of 7.62 bore, one empty of 303 bore, two bulbs, bloodstained earth and blood-stained clothes were taken into possession by the investigating officer Which was witnessed by Ghulam Farid and constable Asmatullah. P.W.3 Ghulam Farid has supported the version of recovery when deposed in the Court.
The expert opinion was also in positive.
11. So far as the medical report is concerned, the dead bodies were taken to the hospital at 08.30 a.m. Postmortem of Sajid deceased was conducted at 9 a.m. Whereas the postmortem on the dead body of Mushtaq deceased was conducted at 10 a.m. And the duration given by the doctor was 06-10 hours in respect of deceaased Sajid and 07-1 hours in case of Mushtaq deceased which is natural and corroborates the time of occurrence. The dead bodies were received by Ghulam Farid. The ocular account was fully supported by the medical evidence. The doctor was examined as P.W.4 who was cross-examined by the appellants but nothing adverse to the case of prosecution has been brought on file from this witness.
12. The appellants were examined under section 342, Cr.P.C. Wherein they deposed in reply to question No,14 that they want to produce defence but later on for reasons best known to them, the evidence has not been produced. A plea has been taken in the cross-examination that the transformer of the village was not in working condition, therefore, identification was doubtful in the absence of light but this plea has not been proved. No evidence to this effect has been produced nor the complainant or the eye-witness have been subjected to cross-examination on this score.
So far as the abandonment of the daughters of the deceased as witnesses is concerned, in the presence of complainant who happens to be their mother and Ghulam Farid eye-witness, there was no need to produce them, as the same would serve no purpose and would have caused repetition, unnecessary in nature. Even otherwise, the prosecution is not bound to produce all the witnesses mentioned in the challan and to this effect, the objection of the appellants is not sustainable.
13. The motive narrated in the report by the complainant has not been fortified by producing sufficient and reasonable evidence, however, the available ocular account and the presence of the appellants and commission of offence has been duly witnessed and proved and in the prevailing circumstances, as observed above, the prosecution has successfully proved the case against the appellants who committed murders of husband and son of the complainant by firing at them and were rightly convicted under section 302(b), P.P.C. By the trial Court.
14. For the reasons mentioned above, there is no force in the instant appeal which is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.