' NAZ1R AHMAD 13HArn, J.-Accused-appellant Molvi Muhammad Jan, son of Rabnawaz Khan, caste Pashtoon, aged about 32/33 years, resident of village Kakka Khel, Iasi! Lakki Marwat, District Bannu, was charged by complainant Zaintara son of Ibrahim Khan (deceased) alongwith his absconding co-accused Mirza Ali, Sahib Noor and Mosam Khan for the murder of his father deceased Ibrahim Khan and for firing at Abdus Sattar effectively, vide F. I. R. No: 115 of Police Station Lakki Marwat, dated 5-5-1979. He was tried by the learned Additional Sessions Judge, Bannu at Lakki under section 302/307/34, P. P. C. And was found guilty of the offence under section 302/34, P. P. C. And sentenced to death with a fine of Rs, 5.000, in default whereof to undergo three months' R. I., vide his judgment dated 11,44983. He was also ordered to pay a fine of Rs, 5,000 as compensation to the legal heirs of deceased Ibrahim Khan, in default of which to suffer further three months' R. I. He was, however, acquitted of the charge under section 307/34, P. P. C. Through the present appeal, the appellant has challenged his conviction and sentence. There is also a Mulder Reference bearing No, 4 of 1983 referred by the learned trial Judge for confirmation of the death sentence of the appellant under section 374, Cr. P. C. By this judgment, we propose to dispose of both these matters.
2. Briefly stated the facts of the case, as narrated by the marker of the F. I. R. Zamtara, are that on the day of occurrence at 7.00 a.m., he (cornplainiant alongwith his father Ibrahim (deceased) his father-in-law Abdus Sattar and his brother Sher Bahader were proceeding towards threshing floor, when they reached the street near the house of Abdul Ghaffar, accused Molvi Muhammad an alongwith his absconding co-accused Mirza kli and Mosam Khan all armed with shot-guns appeared from the opposite side and fired one shot each at his father with which he was hit on the face and fell down to the ground and expired there and then that meanwhile accused Sahib Noor armed with shot-gun also appeared from the opposite side and fired at Abdus Sattar effectively who was hit on his head and then all the four accused decamped from the spot. Motive for the offence was stated to be that one Sharif, who was brother-in-law of the complainant Zamtara, was killed for which Sahib Noor, the absconding co-accused of the appellant, and his brother Moinuddin were charged.
3. The prosecution, in order to prove its case against the accused-appellant, produced nine witnesses out of whom Sher Bahader, Abdus Sattar and amtara (t e complainant) are eye- witnesses of the occurrence while P. Ws. Muhammad Ali, Rohani and Meherban A. S. I. Are formal.
4. Jhang Sher P. W. 1 had identified the dead body of the deceased Ibrahim Khan at the time of its post-mortem examination in the Civil Hospital Lakki. P. W. 2 Habib Khan, Foot Constable is a marginal witness to the recovery memo. Exh. P. G. Vide which the Investigating officer took into possession blood-stained earth from the spot and sealed it into a parcel. He is also a marginal witness to the memo. Exh. P. J. Vide which the Investigating Officer took into possession one white blood-stained shirt and has also verified his signatures on these memos. In his presence, the Investigating Officer took into possession three pellets vide memo. Exh. P. K., two goats, one kid, one sheep and one lamp vide memo. Exh. P. M., while $ cardboards and two pellets were abstracted from the wall vide memo, Exh. P. H. P. W. 3, Safdar Hussain S. H.
0. Had submitted complete challan of the case in the Court. P. W. 7, Shah Zar Khan constable (retired) had stated that on the day of occurrence, the Medical Officer had handed over to him one bloodstained shirt of the deceased and a sealed phial containing pellets which he had then handed over to the I.
0. And had accompanied the dead body of the deceased Ibrahim Khan from the spot to the hospital and none had interferred with it in the way. But in cross-examination he has stated that he had gone to the spot with the I.
0. Where dead body of the deceased was lying on the ground.
5. P. W. 8, Muhammad Khan, A. I. S. Was posted during the days of occurrence at Police Station Lakki who had recorded the report of the complainant vide F. I. R. Exh. P. A. And had accompanied the complainant to the spot. He prepared the inquest report Exh. P. D. Of the deceased and injury sheet of injured Abdus Sattar P. W. Which is Exh. P. F. He had also prepared the injury sheet of deceased Ibrahim Khan which is Exh. P. C. And had inspected the spot at the instance of the complainant and Sher dahadar P. Ws. And prepared the site plan. Exh. P. B. He had recovered blood-stained earth from the spot and took it into possession vide recovery memo. Exh. P. G. 8, cardboards vide memo.
Exh. P. H. And also took into possession a sealed phial containing pellets which were sent by the Doctor. A cross-report, Exh. P. Z., was also made by the accused-appellant to this P. W.-after his arrest. The I.
0. Found some marks of pellets on the wall shown at point No, 10 in the site plan and recovered two pellets from that place with the help of a knife.
6. P. W. 9, Doctor Charagh Hussain Shah, who was posted as Medical Officer Incharge, Civil Hospital Lakki during the days of occurrence had conducted autopsy on the dead body of deceased Ibrahim Khan on 5-5-1979 at 4.00 p.m. And had found the following injuries on his external examination
(1) A fire-arm inlet wound size 1" x i" on the midline of the neck.
(2) A fire-arm outlet wound size I/8' x it` corresponding to inlet wound at S. No, 1 on the right side of the neck at a distance of 1' from inlet wound at S. No,
1. The direction of the wound is from left to the right and slightly above downwards.
(3) A graze wound 2' x 1' on the right side of the back of the chest 11' above the upper border of the right scapula.
(4) A fire-arm inlet wound size it" X 1" on the lateral side of the right shoulder joint.
(5) A fire-arm inlet wound size it" X it" on the cheek 1' away from labule of the right ear.
(6) A fire-arm inlet wound size x 1. On the right side of the face away from the angle of the mouth and almost the line with it.
(7) A graze wound on the right ear.
' On internal examination, the Doctor found cervical vertebra fractured, mouth pharynx injured, stomach healthy containing one ounce of digested food, right maxilla was also found fractured. In his opinion, the death had occurred due to shock, haemorrhage and injuries to the vital organs caused by fire-arm. Three pieces of pellets were also recovered by the Doctor from the dead body of the deceased weighing 105 grains which were sealed and were handed over to the Investigating Officer alongwith post-mortem report and the blood-stained shirt. In the opinion of the Doctor, time between injury and death almost instantaneous while between death, and post-mortem examination 6 to 12 hours. The said Doctor had also examined P. W. Abdus Sattar on the same day at 3-40 p.m. And had found the following injuries on his person:-
(1) A graze i" x on the vertax of the skull.
' In the opinion of the Doctor, duration of the injuries was within 12 hours, were caused by fire-arm and simple in nature. The medico-legal report is Exh. P. F. And bears his signature. In cross- examination, the Doctor has stated that usually S. G. Catridge contains 9 pellets while L. G.
Cartridge contains 6 pellets, that injuries Nos. 1 and 3 on the person of the deceased were from back side while injury No, 4 was lateral, that had the shot been from the fronts side, it would have caused injuries Nos. 1 and 3. According to him, the possibility could not be excluded that the deceased had his right side towards the accused when he was fired at, that from the injuries on the person of the deceased and the injured P. W., it could be inferred that the same kind of projectile was used. The length of the two grazed wounds on the person of the deceased was 2' x In his opinion, all the injuries might had been caused by one fire shot.
7. In his statement under section 342, Cr. P. C., accused-appellant, Molvi Muhammad Jan denied the charge levelled against him but admitted that his relatives Moinuddin and Sahib Noor were charged for the murder of one Sharif son of P. W. Abdus Sattar. He admitted his report in the cross- case and regarding the charge of murder against him, he stated that the P. Ws. Were interested witnesses and related to the deceased. He stated that the Police Officials were also interested in the success of the prosecution case. He pleaded innocence and stated that he had been charged on account of his cross-case. However, he did not produce any defence.
8. In the cross F. I. R. No, 117, copy Exh. P. Z., made by accused-appellant Molvi Muhammad Jan on 5- 5-1979 at 1700 hours to the Investigating Officer who had arrested him, the accused had reported that on the said day at sunrise time he had gone out to case himself. When he reached near the house of Abdul Ghaffar, he saw Ibrahim Khan son of Faizullah coming from the opposite side unarmed. No sooner than he saw him, he shouted to kill the accused and simultaneously Abdus Sattar who was armed with a '12 bore shot-gun fired at him ineffectively, Mir Jan son of Faiz armed with a '12 bore shot-gun, Zamtara armed with a '5 shot rifle and Sher Jhang who was also armed, fired one shot each at him ineffectively. All the accused then ran away and when he was passing by the house of Mir Badsbah, Sher Bahader son of Ibrahim who was standing armed with a '12 bore shot-gun, fired one shot at him ineffectively whereupon the accused ran and entered his house.
Nobody had seen the occurrence and the cause of enmity was that about 2 years ago, his brother Moinuddin and his cousin Sahib Noor had murdered Sharif Khan son of Abdus Sattar.
9. P. W. 4, Zamtara complainant, P. W. 5 Sher Bahader and P. W. 6 Abdus Sattar are eye-witnesses of the occurrence. Actually P. W. 7 Abdus Sattar was injured at the spot at the time of occurrence. All the said three eye-witnesses have corroborated the contents of F. I. R. No,
115. However, they have also made some improvements in the prosecution story. In so far as the sequence of fire shots is concerned, all the three eye-witnesses have stated that on seeing them, the accused Molvi Muhammad Jan fired first shot at deceased Ibrahim Khan who was hit on his face, then second shot was fired by absconding accused Mirza Ali which also hit the deceased on the face and side of the face, then the third shot was fired by absconding accused Mosam Khan which bit the shoulder of the deceased and then be fell down on the ground. It has also been stated by all the eye-witnesses that the absconding accused Sahib Noor fired at P. W. Abdus Sattar with which he was injured on his head and that this accused had appeared on the scene after the other three accused. However, sequence of the shots, as narrated during the evidence, was not mentioned in the F. I. R. Zamtara complainant had further stated in cross-examination that he had seen Abdul Karim and Hamidullah Jah when he was leaving for the Police Station but he did not narrate the occurrence to them. A suggestion was made to the other eyewitnesses from the accused side that P. W. Abdus Sattar bad informed them that absconding accused Sahib Noor had come to his house and the complainant party was proceeding towards his house to kill him and that shot fired by absconding accused Sahib Noor had hit the deceased Ibrahim Khan and P. W. Abdus Sattar and that the injuries on both of them were the result of one shot, but they contradicted this suggestion.
P. W. 5, Sher Bahader, made a further, improvement that after the shot fired by accused Molvi Muhammad Jan, his father had turned a little but. This witness had further stated in cross- examination that accused Molvi Muhammad Jan had come in front of them and had fired at their father from the front. He has further stated that P. W. Abdus Sattar and the deceased were going side by side.
10. It was urged by the learned counsel for the appellant that the eyewitnesses were not only related to the deceased but inimical to the accused as well. He contended that two eye-witnesses, namely P. W. 4 complainant Zamtara and P. W. 5 Sher Babader, are sons of the deceased and P. W.
6 Abdus Sattar is father-in-law of the complainant and that due to the previous blood fued enmity between the parties, the prosecution witnesses were inimical towards the accused. No doubt, the prosecution witnesses are related inter se and to the deceased, but this circumstance alone cannot be taken into consideration to discredit their evidence. P. W. Abdus Sattar was injured in the occurrence and his presence at the spot at the time of occurrence cannot be ruled out. If his presence is established, then his evidence is also to be taken into consideration as the accused- appellant has directly been charged by the complainant for firing a shot at the deceased Ibrahim Khan and also injuring this P. W. On the face. Moreover, the presence of these three eye-witnesses has also been proved from the counter-report lodged by the accused soon after his arrest. In that report, has clearly mentioned the presence of these three witnesses at the spot. Not only that but he has also charged them for ineffectively firing at him. This circumstance alone would establish the presence of these three eye-witnesses at the spot. Consequently, the- disquaii9cation of relationship and enmity alleged against) these three eye-witnesses would be removed. The testimony of these three witnesses is very consistent and they have in very clear language charged the appellant for firing at the deceased and injuring him. The question of A relationship of witnesses to the deceased comes up practically in every criminal case and the Courts have to deal with this aspect of the matter more often. It has now become a consistent view of the superior Courts that relationship and enmity per se of the witnesses in a criminal case is not sufficient to discredit their testimony if the same is otherwise corroborated by circumstances attending the occurrence. In support of this view, reliance may be placed on tin case of Miro and others v. The State (1), wherein the Supreme Court was {{FOOT NOTE}}
(1) 1981 SCM R 1229 {{FOOT NOTE}} ' pleased to observe that the mere fact of witnesses being partisan or inimical does not render their testimony ipso facto unreliable and question of veracity and reliability of such witnesses is to be examined in the overall circumstances of each particular case, since such witnesses could be witnesses of truth. Again in the case of Zulfiquar and others v. The State (1). It was held that mere relationship does not bring a witness within the category of interested witness. In respect of the testimony of an injured witness, it held was in Muhammad Afzal v. The State (2), the testimony of injured witness confidence inspiring and duly supported by medical evidence, conviction could be maintained in circumstance. In so far as the counter F. I. R. Is concerned, the learned counsel for the appellant stated that it could not be taken into consideration. However, this view is erroneous, for the reason that although a cross F. I. R. Cannot be taken as a confession but if it is exculpatory, it can be taken into consideration for limited purpose of establishing the presence of the accused and any eye-witness as may be mentioned in the cross F. I. R. The circumstance of counter-report of the accused has also been a subject-matter of discussion in many criminal cases and the unanimous B view of the superior Courts is that if the counter-report lodged by the accused is exculpatory, it may, not be taken as a confession but it can form the basis of establishing the presence of the accused and the eye-witnesses at the spot at the time of occurrence. This view was taken by the Supreme Court in the cases of Suleman Shah v. Ayub and 5 others (3). Mohabat v.' The State (4), and Ayub v. The State (5). There cannot, therefore, be any cavil in regard to the circumstance of the presence of the three eye-witnesses including the injured one, at the spot at the time of occurrence. The next question for determination is the evidentiary value of their testimony. The simple fact that one of the witnesses was injured would be sufficient to enshrine the prosecution evidence with credibility. The consistent nature of the prosecution evidence inspires confidence and it has to be relied upon in the circumstance of this case. In regard to the ocular witnesses, it was further urged by the learned counsel for the appellant that they were chance witnesses and independent persons were present and there was no independent corroboration of their testimony. Regarding chance witnesses, the learned counsel contended that the story of proceeding towards the threshing floor was fictitious and stood unproved. However, this point is also devoid of any meritable consideration for the reason that the presence of these witnesses has been established at the spot beyond any doubt and the question of their proceeding or not proceeding towards the threshing floor is immaterial. In so far as the other objection is concerned, it may be stated that none of the eye-witnesses has stated that independent persons had seen the occurrence. The complainant admitted only this much that when he was proceeding towards the police station after the occurrence, be saw Abdul Karim and Hamidullah Jan. This circumstance would not prove that these two persons had also seen the occurrence. It is quite possible that they may have reached the spot after the occurrence. The complainant has not admitted nor the other eye-witnesses that these two persons were present during the occurrence.
For these reasons, we would find no substance in these two contentions of the learned counsel.
11. It was next argued by the learned counsel for the appellant that the circumstantial evidence did not corroborate the eye-witness account of {{FOOT NOTE}}
(1) 1983 P Cr. L J 1306 (2) 1983 P Cr. L J 2502
(3) PLD 1971 SC 751 (4) 1975 P Cr. L J 882
(5) 1980 P Cr. L J 201 {{FOOT NOTE}} the occurrence. His contention was that injuries Nos. 1 and 4 to 6 on the person of the deceased were of the same dimension and three pellets were recovered from these injuries, that the aforesaid injuries and the grazed wounds sustained by the deceased and injury to Abdus Sattar showed that six pellets had hit both of them, that two pellets were recovered from the wall and all these showed that at the most 8 pellets were discharged in all. The contention of the learned counsel for the appellant was that an S. G. Cartridge contains nine pellets and the injuries sustained by the deceased and P. W. Abdus Sattar could well be caused by one shot. In this connection he also relied upon the testimony of the Doctor who in cross-examination opined that the injuries could be caused by one shot. We have given a serious thought to these contentions of the learned counsel but we are unable to agree with him, for the reason that the recovery of only eight pellets cannot be taken as to exclude the possibility of more than one shot. It has not come in evidence that the Investigating Officer had searched the vicinity and the place of occurrence to search out any stray pellets. It cannot, therefore, be definitely stated that only eight pellets were discharged. It is quite possible that certain pellets may have gone astray and this circumstance finds support from the fact that eight cardboards were recovered from the spot. The latter circumstance would definitely prove that more than one shot was fired. In this connection, the learned counsel for the appellant further contended that the recovery of two pellets from the wall showed that the shot was fired from the front. But this circumstance, would only be confidence inspiring if it could be established that only one shot was fired. Whereas the possibility of numerous shots cannot be ruled out. Therefore, we would not take into consideration this argument as well.
12. The learned counsel for the appellant next contended that very' material improvements had been made in the prosecution story at the time office evidence which made the case against the appellant doubtful. He stated that/ the sequence in which the shots were alleged to have been fired by all the accused as, disclosed in the evidence and the rule of principal accused assigned to the appellant were not disclosed in the F. I. R. In this connection, it may be stated that, firstly the eye-witnesses were not confronted with the alleged improvements, and, secondly, it has now become a well-established principle of o criminal law that F. I R. Has never been treated as an exhaustive document giving all the minute details of the occurrence. The contents of the F. I. R.
Would be sufficient to start investigation against an accused if the sanely discloses the offence in sufficient detail and connects the accused with the offence complained of. Some variations from the original story disclosed in the F I. R. Are bound to occur after the lapse of time when the case comes up for trial. Even otherwise, this contentions cannot be considered seriously, E for the reason that no question was asked from the witnesses regarding these improvements being an afterthought as they were not confronted in regard to them.
13. The learned counsel for the appellant then contended that the prosecution had failed to prove a motive against the appellant. However, this contention is also not tenable for the reason that the appellant has himself admitted in his cross-report that there was previous blood fued enmity between the parties. He also admitted in his statemei.t under section 342, Cr. P. C. That Moinuddin and Sahib Noor, who are his relatives were charged for the murder of Sharif son of P. W. Abdus Satter. As such, the appellant has himself confirmed this portion of the F. I. R. Of the present occurrence. The motive, as originally disclosed in the F. I. R., was not only proved but was also admitted to exist by the appellant.
14. The learned counsel for the appellant lastly contended that the sentence of death imposed upon the appellant needed sympathetic consideration. We have considered this aspect of the case very seriously. The of the appellant cannot be distinguished from the other absconding accused, all of whom have been charged for firing at and injuring the deceased an it cannot be positively asserted that the shot fired by the appellant proved fatal. Even otherwise, it was brought to our notice that the absconding accused are alleged to have affected a compromise with the complainant party. Taking this circumstance into consideration, we are of the considered opinion that there was strong mitigating circumstance in favour of the lesser sentence of life imprisonment. We would therefore, partially accept this appeal to the extent that we would maintain the conviction of the appellant under section 302/34, P. P. C. But would reduce the sentence of death to that of imprisonment for life. The Murder Reference No, 4 of 1983 is accordingly, disposed of.
Death sentence not confirmed. .0