MUHAMMAD AAMIR NAWAZ RANA, J. The appellant, after full-fledged trial under sections 302, 324, 109, 34 P.P.C, was found guilty by the Court of Sessions Judge, Musakhail ("Trial Court") and vide judgment dated 16.12.2022 ("impugned judgment") he was convicted and sentenced as under: "Therefore, the accused safar Khan son of Ali by caste Saleemkhanzai resident of Musakhail is found guilty of Qatl-i-Amd liable to Ta'azir under Section 302(b) of P.P.C. He is convicted under Section 302 (b) of P.P.C. and sentenced to Rigorous Imprisonment for life and to pay Rs.200000/- (two lac rupees) as compensation amount under Section 544-CA Cr.P.C to the legal heirs of deceased, in case of non-payment of compensation amount he shall further suffer Rigorous imprisonment for the period of six months more. Benefit of Section 382-B Cr.P.C is extended in favour of accused. "
The appellant has called in question the legality and validity of the impugned gment through this appeal by professing his innocence.
SUMMARY OF THE FACTS:
2. On 25.04.2016 at about 7:15 p.m. on the written report/Fard-e-Bayan Ex-P/1-A, the FIR bearing No.05 of 2016 was lodged by Juma Khan (complainant) with Police Station Saddar Musakhail. The complainant had alleged that on eventful day he along with his brother Qeemat Khan and Gul Hassan went to his uncle Safar Khan's house who had come from Punjab, thereafter their said uncle Saffar Khan along with Qeemat Khan and Gul Hassan left for Gokkar on a tractor for cutting the bushes; when they returned back and at about 5:30 p.m, reached near Pathan house, meanwhile appellant along with Haji Gul holding Kalashnikovs in their hands came out of their home and started firing upon them, due to which their uncle received bullet shots and fell on the ground, they rushed to their uncle but he succumbed to injuries. The accused party thereafter fled from the place of incident. Per complainant they also saw Juma Khan accompanying the accused persons.
On the report of complainant, FIR No.05/2016 (Ex-P/6-A) was lodged at Police Station Saddar Musakhail and investigation commenced: INVESTIGATION:
3. The investigation of the matter was entrusted to PW-6 Shah Nawaz ASI. As per record the investigating officer visited the place of occurrence, prepared site plan, picked the blood stained mud from the place of occurrence, prepared inquest report of the deceased, taken into possession nine (9) empty cartridges of Kalashnikov from the place of incident and thereafter prepared parcel of the same. The blood stained clothes of victims were also taken into possession through recovery memo, and prepared parcel of the same. The statements of the witnesses in respect of recovery memos were also recorded, thereafter the dead body was handed over to the legal heirs of deceased. Statement under section 161 Cr.P.C of eye-witnesses were also recorded, thereafter obtained death certificate of the deceased from the Civil Hospital. The blood stained mud and clothes of deceased were sent to FSL for analysis. On receipt of FSL report, the report under section 173 Cr.P.C was prepared and submitted to the competent Court of jurisdiction for the purpose of trial. Meanwhile the investigation was entrusted to PW-7 Gul Hassan IP. On 13.01.2022 the accused/appellant was arrested, however on 22.01.2002 the 2nd investigating officer went on leave and handed over the investigation to PW-8 Niaz Muhammad ASI/SHO who conducted the investigation and after completion of investigation, shifted the accused to judicial custody and thereafter prepared the report under Section 173 Cr.P.C and submitted the same before the Trial Court.
TRIAL:
4. Prosecution in order to prove the charge against the accused had produced eight witnesses including investigating officers. The gist of prosecution evidence can be encapsulated tersely; PW-1 Juma Khan is the complainant of the case, he deposed before the Trial Court in accordance with his Fard-e-Bayan Ex-P/1-A. PW-2 Qeemat Khan and PW-5 Gul Hassan are also alleged to be eye- witnesses of the case. They narrated the same story as narrated by the complainant. PW-3 is the recovery witness who got exhibited the recovery memo of blood stained earth and empties as Ex- P/3-A, seal parcel No.1 of blood stained earth as Art-P/3-A, sample of seal parcel as Art-P/3-2, blood stained earth as Art-P/3-3, Parcel No.2 of empties as Art-P/3-4, sample of seal as Art-P/3-5, nine empties as Art-P/3-6. He exhibited blood stained shirt of deceased as Ex-P/3-B, parcel No.3 of blood stained shirt as Art-P/3-7, sample of seal as Art-P/3-8, blood stained shirt as Art-P/3-9. PW-4 is Medico-legal Officer DHQ Hospital Musakhail, according to him on 25.04.2016 at 8:00 p.m., he was present in DHQ Hospital Musakhail when dead body of deceased Safar Khan, was brought in the hospital and he examined the deceased and subsequently issued MLC (Ex-P/4-A) of the deceased.
PW-6 Shah Nawaz ASI is the first investigating officer of the case, who brought on record all the relevant documents and articles which he prepared and obtained during investigation. PW-7 Gul Hassan IP, being investigating officer deposed that on 25.04.2016 on the written report of complainant FIR was lodged and the investigation was entrusted to Shah Nawaz ASI. On 13.01.2022 the accused was arrested and he (PW-7) carried on the investigation and on 22.01.2022 he went on leave and handed over the investigation to Niaz Muhammad ASI/SHO. PW-8 Niaz Muhammad ASI/SHO deposed that firstly the investigation of the case was conducted by Shah Nawaz ASI/I0; on arrest of accused on 13.01.2022 the investigation was handed over to Gul Hassan IP and on 22.01.2022 Gul Hassan IP went on leave and the investigation was handed over to him. He conducted the investigation and during investigation the accused admitted his guilt stated that his sister who was wife of Abdullah Jan was killed by Abdullah Jan and Safar Khan due to which they forbidden them not to come in their area but they intentionally came there by listening tape recorder loudly while passing nearby their house, whereupon they became provoked and made firing upon them with Kalashnikovs, thereafter, they came to know that one Safar Khan had died from his firing; after the incident he left the area, sold the Kalashnikov to one Nomad and went to Punjab. PW-8 further deposed that after completion of investigation, the accused was shifted to judicial custody. He exhibited report under Section 173, Cr.P.C. as Ex-P/8-A. On conclusion of evidence by the prosecution, the statement of the appellant under Section 342 Cr.P.C. was recorded. The appellant did not opt to record his statement on oath as envisaged under Section 340(2) Cr.P.C, however he produced two witnesses in his defence. On conclusion of the trial, the learned Trial Court recorded conviction against the appellant and sentenced him in the terms mentioned above.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANTS AND LEARNED ADDITIONAL PROSECUTOR GENERAL:
5. Learned counsel for the appellant contended that the prosecution had not proven the case against the appellant beyond reasonable doubt as no independent corroborative or substantive piece of evidence is available against the appellant which could connect him with the commission of the alleged offence. Per learned counsel all the witnesses are closely related, and are contradicting statements of each other. While concluding his arguments learned counsel submitted that considering the conduct of the prosecution's witnesses their testimonies are neither confidence inspiring nor worth reliance but the Trial Court committed gross error by giving undue waightage to the ocular account furnished by the alleged eye-witnesses, who failed to prove their presence at the spot.
6. Learned counsel for the complainant while controverting the arguments advanced by the counsel for the appellant maintained that prosecution had proven the guilt of the appellant to the hilt. Per learned counsel the appellant was nominated in the FIR and specific role had been assigned to him of firing upon the deceased Safar Khan. Per learned counsel the appellant has not been able to point out any material illegality or irregularity in the impugned judgment, therefore according to him the appeal being meritless deserves dismissal.
7. Learned APG while appearing on behalf of the State supported the arguments of learned counsel for the complainant prayed for dismissal of the appeal.
We have heard learned counsel for the appellant, learned counsel for the complainant as well as learned APG and with their able assistance have thoroughly perused the available record.
DETERMINATION:
8. The FIR had been lodged by Juma Khan (complainant) who happens to be the nephew of deceased Safar Khan. Record transpires that the alleged incident took place on 25.04.2016 at 5:30 p.m. and the FIR had been lodged by the complainant at about 7:15 p.m, whereas the deceased was brought to DHQ Hospital Musakhail at 8:00 p.m. In the FIR not only the appellant was nominated, but role of firing had been attributed to him. Prompt recourse to law straight at the police station minimizes any possibility of deliberation or consultation. Reference in this regard may be made to the case of Nasir Iqbal alias Nasra and another v. The State[1], where it has been held as under: "7. ... The scrutiny of their evidence does not suggest any exaggeration rather not assigning any specific role to the accused persons reflects the truthfulness of their testimony when in hustle and bustle of the occurrence which has been committed within a few seconds or minutes it is humanly impossible to assign specific role and giving detailed description of the same would rather infer or input to have been made out to falsely rope the accused persons, as such lodging of the FIR in straightforward manner in the fact and circumstances of the cases rules out any possibility of falsely roping the accused persons rather the lodging of the FIR in a straight forward manner shows that it carries the true version..."
9. The prosecution in order to prove the charge against the appellants had relied upon ocular account furnished by eye-witnesses as well as medical evidence.
For the facility of reference MLC of deceased is reproduced herein below: Name:. Sadar Khan son of Jamal.
Age 50 years, sex Male, Caste: Saleem Khanzai. Adress: Zecer Mian.
Date and time: 25/042016 at 8:00 p.m.
Brought by: SHO Thana Sadar Musakhail.
External Examination of dead body in the presence of SHO Injuries: i. Entry wound left side of vertebral column at level of kidney 1.3 cm circumference, exit wound at the umbilicus 4 inch circumference 10 stitches applied. ii. Bullet crosses dorsal surface of left hand removing skin of middle and ring finger at second metatarsal bone. iii. Entry wound in the left shoulder (back) at upper end 1 inch circle. Exit wound on axila 3 inch circumference. iv. Entry wound back of right shoulder 1 1/2 cm circumference at upper border, exit wound clavicular region 2 cm circumference. v. Entry wound below breast on right side of sternum 3 inch below right breast. (1 1/2 cm circumference.) Exit wound not present. vi. Entry wound 4 inch below left breast in the midline. 1 1/2 cm circumference. Exit wound not found.
Kind of weapon : Fire arm.
Nature of wound: very dangerous leading to death.
Cause of death: heavy bleeding and vital organ and vital organ damage.
Medical evidence had fully supported the ocular account about the kind of weapons used during the occurrence; and the time of incident as narrated by the eye-witnesses, had fully tallied with the medical evidence. In this regard reliance is being placed upon the case titled as Noor Zaman v.
The State[2], whereby the Hon'ble Supreme Court held as under: "Preponderance of ocular account, being consistent with medical evidence and durations given therein, in itself constitute 'proof beyond doubt" inescapably pointed upon petitioner's culpability.
Proved to the hilt, it is an open and shut case.
10. As far as the plea of the learned counsel for the appellant that only interested witnesses who are relatives of deceased were produced by the prosecution is concerned, it has been the consistent view of the apex court of the country that mere relationship of the witnesses with deceased would not discard their testimonies if otherwise the same are trustworthy, confidence inspiring and appealing to reason while corroborated by independent circumstances as has happened in the case in hand. In this regard reliance is placed on the case of Khadim Hussain v. States[3], whereby the Hon'ble Supreme Court held as under:
7. It is an admitted feature of the case that eye-witnesses were related to deceased but on this score their statements could not have been discarded. It is well-settled by now that merely on the basis of inter se relationship the statements of prosecution witnesses who stood, firm to the test of cross-examination cannot be discarded especially when sufficient corroboratory material is available. It is to be noted that only for the safe dispensation of justice corroboration is necessary in certain given circumstances but the scope of this principle cannot be extended to the case of ancillary facts testified by the witness. (Riaz Hussain v. The State 2001 SCMR 177). It is the intrinsic value of the statements of prosecution witnesses which is to be examined and not the relationship. There is no cavil to the proposition that "in such like cases the Court is required to look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction and this is what is meant by saying that the statement of an interested witness ordinarily needs corroboration". In this regard reference can be made to case titled Riaz Hussain v. The State 2001 SCMR 177, Devi Prasad v.
State AIR 1967 All. 64, Niaz v. State PLD 1960 (Pak.) 387, Nazir v. The State PLD 1962 SC 269. As mentioned hereinabove "friendship or relationship of a witness with the deceased is not sufficient to discredit him particularly when he has no motive to falsely involve the accused in a heinous offence like murder." In this regard reference can be made to cases titled Manawar Ali v. State 2001 SCMR 614, Muhammad Amin v. The State 2000 SCMR 1784, Iqbal alias Bhala v. State 1994 SCMR 1, Nazir v. The State PLD 1962 SC 269, Khalil Ahmad v. The State 1976 SCMR 161, Allah Ditta v.
The State 1970 SCMR 734 and Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274.
11. So far non-recovery of crime weapon by the investigating officer cannot destroy the case of prosecution. It is settled proposition of law that recovery of weapon of offence or empties is not mandatory requirement of law, but it is a circumstantial evidence which tends to corroborate other piece of evidence. In Muhammad Naeem alias Deni's case[4], it has been held that "Even otherwise, the recovery of crime weapon in a criminal case is not at all material. It can only be a piece of supporting evidence if other evidence goes to prove the case independently, the recovery is not essential at all."
12. The appellant after the incident chose to remain absconder; his companion was arrested and on the charge of conspiracy to commit murder, he faced the trial and subsequently was acquitted.
During this period the appellant remained fugitive from law and no explanation in this regard has been furnished by the appellant. Though absconsion itself is not sufficient to convict an accused but it is a strong piece of corroborative evidence of the other direct substantive evidences of the case. Reliance in this regard is being placed upon the case titled as Qaisar Khan v. The State[5], the relevant excerpt is reproduced: "11. No doubt abscondence by itself is not sufficient to convict an accused person but is strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. When an accused persons remains fugitive from the law for long time without any plausible and reasonable explanation, then his conduct after the occurrence becomes indicative of his guilt when it is considered in conjunction with the ocular and circumstantial evidence, as held by this Court in Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036".
13. In this case at least three eye-witnesses recorded their statements and identified the appellant as he was previously known to them, therefore there was no question of misidentification. The contention of learned counsel for the appellant that since there are discrepancies and inconsistencies in the statements of the eye-witnesses, therefore their statements be discarded on this ground too. We don't find any substance in this argument as well, as the discrepancies or contradictions pointed out were trivial in nature and considering the long absconsion of the appellant, these immaterial discrepancies are but natural and if such minor contradictions having no significance are given importance then we are afraid there would hardly be any conviction.
Reliance in this regard is being placed upon the case titled as Allah Bakhsh v. Ahmad Din.
DENOUEMENT:
14. The nomination of the appellant immediately after the incident, the statements of the eye- witnesses which remained unshaken, no possibility of wrong nomination or misidentification of the appellant as he was saddled with attribution of killing the deceased, no justification provided to replace the actual murderer by the appellant by the complainant party and Medico Legal Certificate of deceased completely supporting the ocular account of the witnesses; all these factors take us to one conclusion that the prosecution successfully brought home the charge against the appellant beyond any shadow of doubt.
In the wake of above deliberation, after thorough reappraisal of the prosecution evidence, we are not convinced by the defense counsel to interfere in the impugned judgment. The case laws referred by the defense counsel are distinguishable to the facts and circumstances of this case.
Appeal stands dismissed.
3. PLD 2010 SC 669
4. 2011 SCMR 8721