' LAL JAN KHATTAK, J.--- Through the instant appeal, Appellant Mehrban has impugned the judgment dated 6-8-2011 of the learned Additional Sessions Judge-V, D.I.Khan whereby he was convicted and sentenced to suffer imprisonment for life under section 302(b) P.P.C., for the murder of Muhammad Door, in case F.I.R. No. 333 dated 11-7-2008 under sections 302/324/458 P.P.C.
Registered against him at Police Station Saddar D.I.Khan. He was also ordered to pay compensation of Rs.1,00,000 to the legal heirs of the deceased as envisaged tinder section 544-A, Cr.P.C. Through the same judgment he was further convicted under section 337-F(vi), P.P.C., for causing injuries to his co-accused Qamar Zaman and sentenced to three years' R.I. And daman of Rs.50,000. In default of payment of daman he was to further undergo three months' S.I., while co- accused Qamar Zaman was acquitted through the same judgment.
2. Brief facts of the case are that on 12-7-2008 Khan S.H.O. Of Police Station Saddar Dera Ismail Khan was on routine patrolling when at about 00-05 a.m. He received information about the occurrence. He rushed to the spot where Qamar Zaman (acquitted co-accused) reported him to the effect that he and his 'brother-in-law Mehrban (appellant) were asleep in the house of Mehrban when at about 23-00 hours he woke-up on hearing the noise of some one's footsteps and saw a person of Pathan physique duly armed passing by his bedside, He tried to catch hold of the intruder who grappled with him and fired but the shot went amiss. According to the report, the appellant awoke and fired with his Kalakov at the intruder but instead of hitting him, the shot landed on the thigh of Qamar Zaman. The trespasser then rushed inside the room of Mehrban.
Mehrban followed him and in the room Mehrban with his Kalakov rifle fired at him who died on the spot. Mehrban left his house to arrange a Datsun but did not return.
3. During investigation, police found both Qamar Zaman and Mehrban involved in the case, so Qamar Zaman was arrested as accused in the case on 22-7-2008 whereas the appellant was arrested on 5-8-2008. After completion of usual investigation into the case, complete challan was given against both the accused. Charge was framed against them to which they pleaded not guilty and opted to contest the indictment. Prosecution in order to substantiate its case against the accused examined as many as 9 witnesses. After closure of the prosecution evidence, statements of the accused were recorded. However, they neither examined themselves on Oath nor produced any witness in their defence. The learned trial Court, after hearing counsel for the parties and assessing the case evidence found accused Mehrban guilty and convicted him as mentioned in para 1 of, this judgment while co-accused Qamar Zaman was found not guilty so he earned acquittal.. The convict has now appealed againk his conviction and sentence.
4. Learned counsel for the appellant in support of the appeal contended that case against the appellant is of no evidence and the learned trial Court has fallen in error to record conviction of the accused. He submitted that co-accused Qamar Zaman has denied lodging of F.I.R. With the police and except this report there is not an iota of evidence with the prosecution which could slightly show involvement of the appellant in the murder of Muhammad Noor. He contended that the impugned judgment is based on presumptions and assumptions which cannot be a substitute of evidence to prove a case. He further contended that P.W.3 has charged the appellant after considerable delay with no plausible explanation and his testimony is not trustworthy. He submitted that F.I.R. Is not a substantive piece of evidence and its contents cannot be taken against the maker unless the same are proved in the Court by its maker. He contended that the first information report was like a statement under section 161, Cr.P.C. Which is not admissible in evidence. On the last leg of his arguments the learned counsel while taking the alternative plea of right of self-defence by the accused relied upon a chain of authorities contending that without prejudice to the right of the appellant for his acquittal on merit, he be held entitled to the exercise of his right of self-defence in the case as the deceased had entered into his house. He relied upon 1992 SCM R 2037, 1991 SCM R 241, 1992 SCM R 2088 and 2008 SCM R 1221.
5. As againk the above, learned counsel for the complainant assisted by the learned Additional Advocate-General representing the State supported the judgment of conviction with vehemence.
6. The learned counsel for the complainant further contended that circumstantial evidence shows involvement of the appellant in the commission of the offence. He contended that apart from ocular account of the occurrence, the prosecution version fully gets support from the medical evidence and recoveries effected in the case. He, therefore, defended the judgment impugned by the appellant.
7. We have heard learned counsel for the parties and perused the record of the case with their valuable assistance.
8. Prosecution case against the appellant mainly hinges on Exh.PA which is a report made by the acquitted co-accused Qamar Zaman just after one hour of the occurrence. This report was made by him to Fazil Khan, S.H.O, who appeared as P.W.B. This witness deposed before the court that after getting information of the incident he rushed to the spot where Qamar Zaman reported him about the occurrence. He produced the Marasila/report as Exh.P.A. He, apart from recording report of the occurrence, also prepared injury sheet of the complainant who had sustained injuries in the occurrence at the hands of appellant Mehrban. He produced such injury sheet as Exh.P.W.8/1. In his cross-examination this witness replied that acquitted co-accused Qamar Zaman had told him that the deceased had ingressed into their house.
9. The point of first importance in the present case for the court is to see that what is the evidentiary and probative value of the first information report. Made by acquitted co-accused to P.W.B. Correct that F.I.R. Is not a substantive piece of evidence and its contents cannot be used against the accused unless and until the same are proved in the court by its maker but in the present case the very initial information given by Qamar Zaman to P.W.8 about his injury and murder of Muhammad Noor cannot be equated with a statement under section 161 Cr.P.C. Which is usually given by an accused person to a police officer after the law is set in motion. As when this statement was recorded by S.H.O. Muhammad Fazil, Qamar Zaman was neither under arrest as an accused nor was required for his association in the investigative process of the case. He narrated about the occurrence on the spot independently on his own as a complainant where he was present and had slept with the convict Mehrban. So contention of the learned counsel that the contents of the first information report Exh.P.A were like a statement under section 161, Cr.P.C. And are inadmissible in evidence has no force in it. Not only that it was a first hand information but this report has a portion more than a report which though is a part of F.I.R. But which can be read and taken up independently and in isolation from the first information of the occurrence and that portion starts after affixation of thumb on the report by Qamar Zaman. In this part P.W.8 i.e. The S.H.O. Has scribed that the information was read over to the complainant verbatim in the language he understood and after admitting it correct he thumb impressed the same. In' this section of report the scribe of document prepared injury sheet of the complainant i.e. Qamar Zaman and referred him for his medical treatment. In pursuance of this referral proceedings, the injured was medically examined by P.W.6 Dr. Muhammad Hanif on the same day and his report to this effect is Exh.PM/1 which supports the initial stance/report made by Qamar Zaman to P.W.B.
10. According to Article 34 of the Qanun-e-Shahadat Order, 1984 an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. When the scribe appeared before the court and he got the Marasila exhibited as PA and he was cross- examined by the defence counsel regarding the fact of trespassing of the deceased into the house where the occurrence took place, and no question was put to him that no report was made to him by the acquitted co-accused about the occurrence, rather the report was admitted by the defence by putting a suggestion about the ingress of the deceased into the house then keeping in view the above it can safely be held that the instant first information report.Was proved according to law. So from the above discussion we derived a conclusion that the report Exh.P.A has been proved by examining its scribe P.W.8.
11. The next crucial question for determination is whether the contents of the F.I.R are also proved and can be relied upon or otherwise. To determine this question we perused the case file.
According to Exh.PA, both the accused were asleep in the courtyard of the house of appellant Mehrban at the time of the occurrence. The Investigating Officer Muhammad Nawaz Khan appeared as P.W.9 who reiterated the contents of the report. He prepeared site plan of the spot which admittedly is house of the appellant Mehrban as there is no cross examination on him from the defence that the place of occurrence is not the house of appellant nor any question was put to him that the occurrence did not take place over there. From the venue of the crime, the I.O.
Recovered blood-stained earth, bloodstained bedstead over which dead body of the deceased was lying, a kalakov of .222 bore rifle with ammunition, 2 crime empties of .222 bore rifle, a .30 bore pistol with 14 live cartridges and 4 empties of .30 bore, a license copy of .30 bore pistol, CNIC of the deceased, a telephone diary and an amount of Rs.9690 from the pocket of the deceased.
12. The first informer also met P.W.8 i.e. The S.H.O. At the crime seen in an injured condition. Point "A" of the site plan shows the place of Qamar Zaman where the Investigating Officer collected bloodstained earth and his injury has been proved by the doctor who examined him. The MLC report is Exh.P.W./1.
13. The site plan Exh.P.B was prepared by P.W.9 Muhammad Nawaz Khan at the pointation of S.H.O.
Fazil Khan and this document shows that the occurrence took place in the house of the appellant.
The contents of this document have not been controverted by the defence and as such the same also stand proved.
14. Now comes the factum of recoveries of various incriminating article. The Investigating Officer P.W.9 recovered the various articles, which are mentioned in, para No.11 of the judgment from the spot vide recovery memo Exh.P. W.7/1. This memo too stood proved as the same was not disputed by the defence.
15. Evaluation and assessm ent of the above referred exhibits i.e. Site plan and recovery memo make us believe that apart from the first information report, their contents too can be relied upon which have been duly proved.
16. Further corroboration of the involvement of the appellant is sought from the deposition of Ehsanullah who appeared as P.W.4 before the learned trial Court. This witness states that the deceased travelled with him in the month of July, 2008 from Bannu to D.I.Khan. On the way he received two telephone calls and when the Coach reached near village Shor Kot, the place of occurrence, the deceased deboarded therefrom by telling this witness that there he has to meet one of his friends who owes some money to him. This witness further deposed that on the next morning he heard about murder of the deceased. Relevancy of this witness with the accused is that the occurrence took place at Shor Kot in the house of Mehrban and the deceased deboarded from the Coach at Shor Kot and he was murdered on the same day.
17. Another corroborating factor lending support to the guilt of the appellant to the commission of the offence is his abscondance. According to Article 21 of the Qanun-e-Shahadat Order, 1984 the subsequent conduct of a party to a proceeding whether it is previous or subsequent is a relevant fact and can be used against him. In view of the above provision of law if we see subsequent conduct of the appellant, his leaving or staying away from his house for 24/25 days is a fact which lends support for his involvement in the murder of the deceased because the occurrence took place in his house and he did not bother to know about the murder committed or the incident which took place in his house. This is not expected from a man of ordinary prudence. Learned counsel for the appellant placed reliance on PLJ 1974 Cr.C. (Lah.) 460 that mere recovery of dead body from a house does not mean that owner of the house has committed the offence of murder.
It is true that mere recovery of dead body from a house does not connect the dweller of a house with the commission of an offence but in the instant case it is not a mere recovery of dead body from his house. His brother-in-law sustained injury from his fire shot. The convict left his house just after the occurrence and he remained fugitive from law for 24/25 days. Neither he tried to know about his family nor house where as per site plan he runs a shop. So the contention and the authority relied upon by the learned counsel for the appellant is not attractive to the instant case and is distinguishable.
18. So far as exercise of the right of self-defence of the appellant is concerned, it is held that from the circumstances of the case the same is not available to him not on the ground that the same has not been raised by the appellant at his trial but for the reasons that the deceased after the part first of the occurrence, as per contents of Exh.PA, rushed to the room of appellant and it was the appellant who went after him and shot him. The appellant could have easily managed to bolt the door of his room from outside but he did otherwise which exercise and action would not extend him the right of self-defence as claimed on his behalf.
19. The overall aspect of the above discussion proves guilt of the present appellant and the learned trial Court has rightly recorded conviction on him.
20. For what has been discussed above, we are of the considered opinion that the prosecution has succeeded in bringing home guilt to the accused and he was rightly convicted and sentenced by the learned trial Court. We do not find any merit in the appeal which is accordingly dismissed.