FAZAL ELAHI KHAN, J.-Abdur Rehman son of Amir Khan aged about 45 years of Village Banser Police Station Batagram District Mansehra has challenged the order of his conviction passed by the learned Sessions Judge, Mansehra dated loth January, 1980, whereby he was, on conviction, sentenced to life imprisonment under section 302, P. P. C. And a fine of Rs. 3,000 and in default of payment of fine to six months' further R. 1.
2. The occurrence took place on 15th February, 1979 at "Pisheen Qaza Vela" at Banser Bazar, at a distance of about 12/13 miles froth Police Station Batagram. Report of the occurrence was lodged by Mst. Sabira (P. W. 6) wife of deceased Yaqoob Khan before Fazal Dad Khan A. S.-I. (P. W. 9), who was posted at that time to Police Post Shamali, Fazal Dad Khan A. S.-I. While on his return from Village Hill after routine "Gasht" had reached Banser when he learnt about a murder in the Bazar at which he rushed there. He saw many persons present on the spot alongwith Mst. Sabira (P. W. 6).
Mst. Sabira made the following report.
"It was about 12.00 hours when my husband Yaqoob Khan left his house for village Banser to offer his prayer. At about "Pisheen Qaza Vela" I heard the roar and cry from the side of Banser that Yaqoob Khan, my husband, is murdered by Abdur Rehman son of Amir Khan. On hearing this information ; ran towards the spot where I saw my husband, Yaqoob Khan, lying murdered. On my enquiry the shopkeepers in the Bazar, namely Saif-ur-Rehman son of Sher Muhammad Khan, Muhammad Sharif son of Haji Muhammad Yousaf (P. W. 7) and Muhammad Sattar son of Aslam Khan (P. W. 8) residents of village Banser and all other residents of the village informed me that my husband is murdered by Abdur Rehman son of Amir Khan resident of Village Banser by firing at him with a "Tamancha". That they witnessed the occurrence. I charge Abdur Rehman son of Amir Khan resident of Banser for the murder of my husband. The enmity was over the litigation between my husband and accused Abdur Rehman."
3. Fazal Dad Khan, A.S.-I. (P. W. 9) after recording of the report in the shape of a Murassala, prepared the injury sheet of the deceased, on the spot Exh. P. H. And inquest report Exh. P. 1, and thereafter despatch--ed the dead body for post-mortem examination, Murassala Exh. P. A. 1 was sent through Muhammad Younas, Foot Constable (P. W. 2) for the registration of the case. This Murassala was subsequently incorporated in the F. I. R. No. 90 of Police Station Batagram dated 15th February, 1979. He prepared the site plan Exh. P. C. With all its footnotes at the pointation of the eye- witnesses mentioned above.
4. The Investigation Officer took into possession blood lying on the spot by scratching from a big stone and made the same into a parcel Exh. P. D. In presence of the marginal witnesses. The house of the accused was searched where from he recovered a - 12 bore shot-gun Exh. P. 2, a leather bandolier Exh. P. 3 containing 25 cartridges of -12 bore Exh. P. 4 and another bandolier containing 7 live cartridges and one miss cartridge of -32 bore vide memo. Exh. P. E. A blood-stained shirt Exh. P.
6 and blood-stained Jersey Exh. P. 7 having cut marks belonging to the deceased and a sealed phial Exh. P. 8 containing two lead bullets produced by Muhammad Younas F. C. Vide memo. Exh. P.
F. He despatched the blood-stained articles to the Chemical Examiner whose report is Exh. P. G. He also recorded the statements of the P. Ws. And completed the investigation.
5. After the preparation of the complete challan the same was sub--mitted to the Court by Moman Shah, S. H. O. P. S. Batagram.
6. Dr. Juma Khan, M. O. Incharge Civil Hospital Batagram per--formed the post-mortem examination on the dead body of Yaqoob Khan deceased and found the following injuries on his person.
External Examination
(1) Entrance 1/4" x 1/4" with scorched margins placed on the front right side chest 3--" above the nipple and 4" from the mid line.
(2) Entrance 1/4" x 1/4" with scorched margins placed on the right side back of the lumbar region 9" above the sacrum --" from the mid line.
(3) Entrance 1/4p x 1/4" with scorched margins placed in the middle back of the lumber region 6" above the sacrum.
(4) Abrasion 1" x -- " placed on the front of the right, knee joint.
Internal Examination: Chest walls injured at the level of injuries. Pleurae injured. Right lung injured. Blood vessels injured at the level of injuries. Stomach healthy and contained rice. Large intestine healthy and contained faeces. Bladder healthy and contained urine.
7. According to the opinion of the Doctor injuries Nos. 1 to 3 are caused by fire-arm and No. 5 by blunt weapon. Injury No. 1 was dangerous and was sufficient in the ordinary course of nature to cause death. Time between injuries and death was given 10 to 15 minutes, between injuries and post-mortem examination as 24 hours. The post --mortem examination was conducted at 8-00 a. m. His report is Exh. P_ W. 1/I and remarks on the injury sheet Exh. P. H. And inquest report Exh. P. 1.
Which are in his handwriting and were admitted to be correct.
8. At the trial prosecution relied on the ocular evidence of Mst. Sabira (P. W. 6), Muhammad Sharif (P. W. 7) and Muhammad Sattar (P. W. 8). Reliance was also placed on the medical evidence, report of the chemical examiner and motive for the offence.
9. After recording all the evidence, Abdur Rehman accused while examined under section 342, Cr. P.
C. Denied the charge and further stated that the deceased had many enemies and was a desperate person. That many criminal cases where registered against him, copies of the various F.
I. R. Were produced which are available on the record as Exh. D. A. And copy of the judgment in a criminal case Exh. D. B. However he had admitted that the deceased was charged for having fired at him (accused) with a five shot rifle to kill him as a result of that shot his right hand was crippled.
The deceased was convicted to suffer four years' R.
1. By the lower Court while he was acquitted by the appellate Court in that case.
10. After considering the evidence so referred, the charge against the accused was held to have been proved beyond any reasonable doubt by the learned Sessions Judge, who thereafter passed the impugned order.
11. At the trial Mst. Sabira examined as P: W. 6 narrated the version of the occurrence as stated above in the F. I. R. However when she was cross-examined by the defence counsel she deposed that she came to know of the occurrence from some children of the Village but the names of those children were not known to her. She further stated that Bazar of Village Banser was at a distance of 15 paces from her house and that the three shopkeepers mentioned above were present on the spot as she arrived there while the Police. Officer had also arrived at the meantime and that it was on receiving the information from the witnesses that the F. I. R. Was lodged. She admitted the presence of many persons from the Village on her arrival to the spot. About the time of occurrence she stated that she could not give time from a watch and the time mentioned in the F. I. R. Might have been disclosed to her by the P. Ws.
12. Muhammad Sharif son of Haji Muhammad Yousaf (P. W. 7) stated that he run a grocery shop in the Banser Bazar and on the day of occurrence he was sitting in his shop and it was at about "Pisheen Qaza Vela" while be was busy in repairing his watch that all of a sudden he heard report of fire-arm where upon he got up and saw Abdur Rehman accused armed with a "Tamancha" while Yaqoob Khan deceased was lying on a stone. It was within his view that Abdur Rehman accused fired a shot at the deceased from a Tamancha and thereafter boulted away. He further stated that he rushed to the place of occurrence where many other people also gathered at the spot. The deceased was picked and placed on a cot with the help of Abdul Hakim, Hazarat Yousaf and Mir Malik, Muhammad Sattar and Saif-ur-Rehman P. Ws. Shopkeepers of Banser Bazar were mentioned by him as eye-witnesses to the occurrence. In cross-examination he stated that the shops of Muhammad Sattar and Saif-ur-Rehman were opened while the other shops in the vicinity were closed as those shopkeepers had closed their shops for offering their prayer. He admitted the arrival of Mst. Sabira P. W. And of A. S.-I. To the place just after the occurrence. The distance between his shop and the place of occurrence was admitted to be 10 paces. He further stated that on the arrival of Mst. Sabira P. W., on her enquiry, he and the other eye-witnesses informed her of the occurrence and thereafter she lodged the report on the spot.
13. Muhammad Sattar, P. W. When examined at the trial stated that he was selling some articles in his shop to 4/5 kinds when he heard the report of fire-arm. On his coming out of the shop he saw the accused armed with a Tamancha while the deceased was lying injured over a stone. He further stated that within his view accused fired a shot at the deceased and then decamped from the spot. He admitted the presence of two other eye-witnesses mentioned above. In the cross- examination he stated that the place of occurrence was not visible from his shop. He further denied the suggestion of the defence counsel that some land owned by the accused was under mortgage with his father-in-law but no mutation had been attested and it was for this reason that he give statement against the accused in order to compel him to attest the mutation in favour of his father-in-law regarding the mortgage in question. He admitted the arrival of the Investigation Officer at the spot just after the occurrence and the presence of many of the villagers and that all of them charged the accused for the commission of the offence, whereupon the report of Mst.
Sabira was recorded by the Investigation Officer.
14. Fazal Dad (P. W. 9) the then A. S.-I. Stated that he was return--ing from his Gasht duty when he came to know in Village Banser about the occurrence whereafter he rushed to the spot and saw Mst. Sabira present there. That he recorded her report in the shape of a Murassala Exh. P. A./1. Rest of his evidence has already been reproduced in the earlier paragraph of this judgment.
15. From the perusal of the site plan and recovery of blood from the place of occurrence there is no doubt left in our mind that the two eye witnesses whose shops are hardly at a distance of 10 to 12 paces away, have been attracted to the spot. Furthermore that they being shop--keepers and the occurrence being a broad day occurrence their appearance on the spot on hearing the shot fired is quite natural. Their statements given in Court are quite consistent, natural and corroborative of each other. Nothing has been brought on the record to cast any shadow of doubt in their statements. These persons are quite disinterested are neither related to the deceased nor have any illwill or bad feeling towards the accused to charge him for the capital offence of murder. The suggestion put to one of them that is Muhammad Sattar that his father-in-law had got on mortgage some land from the accused and he volunteered to be an eye-witness to the occurrence so that the accused may be compelled to attest the mutation in the name of his father-in-law, is a vain attempt to, fish out something to show that he had a motive of his own to implicate him. We are, therefore, fully satisfied that eye-witnesses are disinterested persons having no motive of their own to inculpate the deceased.
16. It has been stated by the learned counsel for the appellant that the F. I. R. Was recorded after delibration and completion of the preliminary investigation and on that score pleaded that investigation was dishonest and that the statements of the eye-witnesses mentioned in the F. I. R.
Be disbelieved. In order to elaborate his point the learned counsel referred to the statement of Mst.
Sabira P. W. 6 wherein she has stated that on getting the information about the occurrence from the P. Ws. On the spot, she left the spot for the police post when she came across a Police Officer to whom she lodged the report on the way to the P. P. On the other hand Muhammad Younas P. W. 2, a police constable in the cross-examination stated that he was present in the P. P. Where the F. I. R.
Was lodged and thereafter he associated with the Investigation Officer and proceeded to the spot.
17. However the concession made by this witness is belied by the statements of the two disinterested eye-witnesses who were definite in saying that the investigation officer himself on hearing the fire shot reached the spot. This is also the statement of the investigation officer where he stated that on reaching the spot it was there that he recorded the report of Mst. Sabira.
Furthermore the statement of the investigation officer with regard to the fact that he was on "Gasht" duty at the relevant time was challenged in the cross-examination, however, when the investigation officer deposed that his departure on "Gash t" duty, is duly entered in the daily diary maintained at the Police Post, the defence did not pursue the matter any further. Such like concession made by the Police Constable, in the course of their examination as formal witnesses, have been disapproved by the Supreme, Court of Pakistan in Bagu v. The State (PLD 1972 SC 77).
18. Whatever may be the case whether the murassala was prepared on the way to the Police Post, at the Police Post or at the spot, the same has no material bearing on the prosecution case in the circumstances of the present case. In support of his contention the learned counsel for the appellant cited a judgment of Lahore High Court Munnawar Khan and others v. The State ( 1977 P Cr. L J 1030), where their Lordships on the facts of that case, when F. I. R. Was lodged on the spot after preliminary investigation and delibration and in spite of the fact that disinterested witnesses of the locality were available but they were not cited as such and shut them held "All these baffling features of the case did not permit of any credence in the evidence led about this occurrence as it was replete wit doubt; the benefit of which could not be denied to the appellants Reference was also made to a judgment Naseer v. The State (1975 P Cr. L J 1321); However these cases are distinguishable on material particulars from case before us as has been indicated above.
19. It was next argued that there is great discrepancy in the time of occurrence given by the two eye-witnesses and recorded in the murassala and the one given by the Doctor in his post-mortem examination, wherein while examining the deceased at 8.00 a. m. He gave out the time between the post-mortem examination and the time of occurrence about 24 hours P. Ws. Have given the time of occurrence to be Pisheen Qaza Vela Taking advantage of this discrepancy it was argued that the F. I. R. Was recorded after the preliminary investigation so the statements of the witnesses are to be discarded. In support of his arguments he relied on a judgment Mardan Ali v. Gulisran (1980 8 C M R 889). This was a case in which appeal against the order of acquittal, passed against the accused, was dismissed. It was observed by their Lordships that the Doctor's opinion regarding time of occurrence may be erroneous by two to three hours but not by 7 or 8 hours. However from reading the entire judgment there were several other material on which the order was based, namely, the disinterested witness of that occurrence was residing five miles away from the place of occurrence, he was therefore, held to be a chance witness. Furthermore his statement was not believed in respect of one of the co-accused who was acquitted by the learned Sessions Judge.
Similar were the discrepancies in the eye account and the medical evidence. All these circumstances coupled with the one i.e. The great discrepancies in the time of occurrence given by the eye-witnesses and the Doctor, that the above-mentioned observations were made. It has been held that judgments of the superior Courts in criminal jurisdiction must be read to have been delivered in the peculiar circumstances and facts to those cases. In support of this proposition reference can be made to a judgment of the Supreme Court of Pakistan The State v. Rab Nawaz and another (PLD 1974 SC 87). Furthermore opinion of a doctor about the time of occurrence is never certain but is generally conjectural specially when he himself writes the word about" while giving the time of occurrence. This view further gets support from a judgment Haji and 4 others v.
The state (1972 P Cr. L J 465).
20. Next the learned counsel for the appellant criticised the prosecution agency for not producing those small boys on whose information Mst. Sabira rushed to the place of occurrence. In addition the persons mentioned by the eye-witnesses who bad arrived at the spot and had held them in putting the deceased on a cot have also not been examined in Court. The argument of the learned counsel in this respect has no force. Firstly the hue and cry raised about the murder attracted Mst.
Sabira to the spot and this is a general phenomena that in such a situation no particular person could have been named as the person having raised the alarm. Had she known such a person the same might have been mentioned at the time of the lodging of the report. In fact she has given a simple and straight--forward version of what she has come to know on her arrival at the spot.
It is also in the evidence that the other persons who had arrived at the spot after the occurrence denied having witnessed the occurrence before the investigation officer. In the circumstances there was no logic in producing these witnesses at the trial. It has been in such circumstances that their Lordships in a case Yaqoob Shah v. The State (PLD 1976 SC 53) observed as under: ---It is a frequent experience of criminal courts that many a gruesome tragedy is enacted, with scores of onlookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These "Independent" onlookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans".
21. It has also been held by their Lordships in a case Syed Mehr Gul Shah v. The State (PLD 1962 Pesh. 91) that it is the duty of the prosecution to bring all available evidence on record, however, the prosecution is not under the obligation to examine witnesses if considered false or unnecessary. The presumption if any to be drawn in the circumstances of the case does not extent to the point that testimony of such witnesses would necessarily have supported defence version".
22. It was also argued that no empties were recovered from the spot. However non-recovery of the empty by itself does not negative the fact of the occurrence having taken place at the place shown in the site plan, proved by the ocular evidence and recovery of the blood.
23. Lastly the learned counsel argued that the deceased had many enemies and was a desperate person and in support thereof he placed on the record copies of the F. I. R. And judgment of the criminal Court. However there is no denial of the fact that the deceased was charged b the accused for attempting at his life by firing at him with a rifle which, according to him, incapacitated one of his hand. Furthermore that the deceased was convicted at the trial of that case and sentenced to four years' R. I. But was subsequently acquitted in appeal. In the circumstance there was a strong. Motive for the accused for the commission of the offence. Substitution in the circumstances is a rare phenomena which I incompatible with the facts of this case.
24. To sum up, we have come to the conclusion after going through the entire evidence and the arguments advanced by the learned counsel to the appellant and that by the Assistant Advocate-General, that the eye-witnesses produced at the trial are quite reliable as has been stated earlier and there is nothing to doubt their integrity. In the circumstance the learned trial Judge was perfectly justified in placing reliance on their statement and further holding that the case against the accused was prove beyond any reasonable doubt.
25. Consequently we feel that there is no merit in this appeal which is dismissed.