' INAYAT ELAHI KHAN, J.--Rahimullah, aged about 25 years and Zaheenullah, aged about 23 years sons of Abdul Hasham of village Kaso, Police Station Temargarah, District Dir, were tried for the murder of Fazle Qadir son of Muhammad Akbar Khan by the Sessions Judge, Dir at Temargarah. By the judgment dated 12-1-1984 Rahimullah (appellant) was convicted under section 302, P.P.C. And sentenced to imprisonment for life and to a fine of Rs,5,000 or in default thereof to further 6 months, R.I. He was also to pay compensation of Rs,5,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to suffer R.I. For three months. The imprisonment in default of payment of fine and compensation was in addition to the imprisonment under section 302, P.P.C.
However, Zaheenullah, the co-accused, was acquitted. Rahimullah (appellant) has challenged his conviction and sentence by this appeal.
2. The prosecution case as disclosed at the trial is that on 11-9-1974 at 2.00 p.m. Fazle Maula (P.W.1), his brothers Fazle Qadir (deceased) and Shamsur Rahman were busy ploughing their land known as Sharo Sar. In the meantime Rahimullah (appellant) alongwith his brother Zaheenullah and his father Abdul Hasham appeared at the spot. Abdul Hasham and Zaheenullah were armed with axes while the appellant was carrying a five shot rifle. The deceased (Fazle Qadir) was asked by the appellant as to why he was not paying the debt of his brother Zaheenullah outstanding against him on account of some purchases made from his shop. Fazle Qadir (deceased) replied that the amount shall be paid by him when he goes back to his house after ploughing. The appellant then started abusing the deceased and wanted to realize the debt there and then. The deceased stopped ploughing the field and asked the appellant as to why he was abusing him. The appellant then fired two shots at the deceased who was hit with one shot on his ribs and died instantaneously. The other shot went amiss. The accused decamped from the spot and the dead body of Fazle Qadir was then taken to his house on a cot.
3. Fazle Maula (P.W.1) after taking the dead body of his brother to his house left for police station, Temargarah at about 4.00 p.m. For lodging the report. Since the Police Station Temargarah was at a distance of about 25/26 miles from their village he spent the night on the way in village Mata Banda in the house of one Shata Mand. On the following day i,e, 12-9-1974 he reached police station Temargarah at about 7.30 a.m. And lodged the First Information Report (Exh.PA). The report was recorded by Meer Karam Khan (P.W.5) the then S.H.O. Of the police station. After recording the report he left for the spot alongwith Fazle Maula (complainant) where he prepared the site-plan (Exh.PB) at the instance of the eye-witnesses. He also prepared the injury sheet (Exh.PE) of Fazle Qadir (deceased). Since the complainant, according to the custom of the area was not willing to subject the dead body of his brother to the post-mortem examination, the dead body was not forwarded to the mortuary. The witness also recovered blood-stained earth, grass and sand vide recovery memo. Exh.PD. The blood-stained shirt of the deceased was also taken into possession and sealed into a parcel vide memo. Exh.PC. Since the accused were not traceable he applied for warrants under section 204, Cr.P.C. Against them and then applied for the issuance of proclamation under section 87, Cr.P.C. The blood-stained articles recovered from the spot were forwarded to the Chemical Examiner whose report (Exh.PW5/2) is in the positive. The report of the Serologist is Exh.PW5/3. He submitted complete challan against all the accused who were absconding at that time.
4. It may be mentioned that during the trial, Abdul Hasham one of the accused, was murdered and in this regard a report was lodged in the police station, Temargarah vide F.I.R. No,71 dated 11-8-1977 under section 302/307, P.P.C. Against Shamsur Rahman (P.W.) and others. Therefore, the case against Abdul Hasham accused stood abated.
5. At the trial the prosecution relied on the eye-witness account furnished by Fazle Maula and Shamsur Rahman (P.Ws.), abscondence of the appellant and the motive for the offence.
6. The evidence of Fazle Maula (P.W.1) and Shamsur Rahman (P.W.2) who are the brothers of the deceased, is consistent on the point that the appellant had fired at the deceased with his five shot rifle who was hit with the first fire shot on his ribs whereas the second shot fired by the appellant went amiss.
7. Khurshid Anwar, S.I. (P.W.4) arrested the appellant who had surrendered to him on 25-2-1981. This witness submitted supplementary challan against the appellant on 3-3-1981
8. The appellant when examined at the trial under section 342,Cr.P.C. Pleaded innocence and stated that he had gone to Karachi prior to the occurrence for labour where he was employed in the shop of one Faramoz Khan of village Manogai. When he came to the village and got information of the report against him he surrendered to the police. He described himself as a minor at the time of occurrence as his date of birth was 1-4-1960. He further stated that since his family was not on good terms with the deceased and his relatives, he and his brother have been falsely implicated in the present case.
9. In support of the appeal it is vehemently urged that in the absence of post-mortem examination and inquest report in respect of the deceased it was nOt possible to locate the number and the nature of the injuries sustained by him. Thus there was no corroboration of the eye-witness account of the occurrence. It is also urged that none was examined to identify the dead body of the deceased and the fact that no empties were recovered from the spot and no instruments of ploughing were found by the Investigating Officer when he visited the spot would create doubt about the correctness of the version given by the eye-witnesses. Some discrepancies in the evidence of Fazle Maula and Shamsur Rahman (P.Ws.) were also pointed out by the learned counsel. It is also urged that since the prosecution witnesses have been disbelieved against Zaheenullah (the acquitted accused) no reliance could be placed on the same evidence against the appellant. It may be mentioned that Zaheenullah was acquitted not on the ground that the prosecution evidence was disbelieved against him but for the reason that he being of about 12 years of age and not only that he was not given any effective role there was no material to show that he shared common intention with the appellant to commit murder. According to the learned counsel the delay in lodging the report would further show that the appellants and others were charged after consultation and deliberations. In this regard it may be mentioned that according to the prosecution evidence Fazle Maula (complainant) after taking the dead body of the deceased to his house left for the Police Station at about 4.00 p.m. The distance of the Police Station from the village is about 25/26 miles and it was to be covered on foot as there is no material that any means of transport were available. On the way he spent the night in village Mata Banda as it became dark and he could not proceed further. On the next day early in the morning he left for the Police Station and reached there at about 7.30 a.m. In these circumstances, we are not convinced that there was delay in lodging the report. The contention that the prosecution evidence being interested would require independent corroboration for basing conviction thereon is also without any substance. The mere fact that eye-witnesses are related to the deceased is no ground to term them as interested witnesses, for, they had no personal motive of their own to falsely implicate the appellant in the case. The eye-witnesses had given a consistent account of the occurrence and their evidence inspires confidence. The mere relationship of the witnesses with the deceased in itself is no ground for discarding their testimony. Further, Abdul Hasham, father of the appellant, was the son of maternal-uncle of Fazle Maula (complainant). In view of this close relationship it is difficult to assume that a false case was brought against the appellant. The eye-witnesses being the natural witnesses of the occurrence appear to have been rightly believed by the trial Court in the absence of any material to cast doubt on their presence at the time of the incident. The discrepancies pointed out by the learned counsel in this regard are that in the First Information Report Fazle Maula (complainant) had said that the appellant also fired a second shot which went amiss but in his evidence he said that it was incorrectly recorded in his statement under section 164, Cr.P.C. That the appellant had fired the second shot at him and his brother Shamsur Rahman.
Shamsur Rahman (P.W.2) stated that while they were approaching the deceased, who had fallen to the ground, the appellant fired a second shot towards them and the deceased which did not hit anybody. In cross-examination he stated that it was, incorrectly recorded in his statement under section 164, Cr.P.C. That the appellant fired a second shot at him and his brother Fazle Maula (complainant). It is also urged that one Said Badshah was also mentioned by the witnesses to be present at the time of the incident but in the First Information Report there is no mention of his presence. Since, Said Badshah has not been examined as a witness in the case, we do not think that this argument would be of any consequence. The discrepancies referred to above, in our view, are not of such a nature as to cast doubt on the credibility of the eye-witnesses. The veracity of the witnesses is to be judged not only from their individual statements but from their testimony taken together with all other facts brought on the record. The objection that no empty-shells or ploughing instruments were recovered by the Investigating Officer when he visited the spot is also without any substance, for, the Investigating Officer had arrived at the spot on the following day of the occurrence at Peshin Vela and by that time the empty-shells might have been picked up by some villagers who gathered at the spot soon after the occurrence. Similarly, the ploughing instruments might have been taken to the village after the occurrence and could not be left at the spot till the arrival of the Police Officer who reached there on the following day.
10. Similarly, the absence of post-mortem examination and inquest report regarding the injuries sustained by the deceased would not be fatal to the prosecution case. Referene can be made to the provision of section 174(3), Cr.P.C. Which is in the following terms: "174(3)When there is any doubt regarding the cause of death, or when for any other reason the police-officer considers it expedient so to do, he shall, subject to such rules as the (Provincial Government) may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the (Provincial Government), if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless."
Under rule 25.35 of the Police Rules, 1934, an Investigating Officer is required to draw a report stating the apparent cause of death and to give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted. No doubt the Investigating Officer has not complied with the obligatory provisions of Police rule 25.35 read with section 174, Cr.P.C. In failing to prepare the inquest report but in our view, the absence of the inquest report or for that matter the absence of post-mortem examination, in the circumstances of the case, would not be fatal to the prosecution. There is sufficient evidence on the file to establish that Fazle Qadir (deceased) was done to death by the appellant by firing at him. The injury sheet of the deceased prepared by the Investigating Officer reveals that there was an inlet firearm wound on the ribs on the left side of the chest with a corresponding exit wound on the right side. This fact lends sufficient support to the version given by the eyewitnesses. According to Fazle Maula (complainant) the deceased was hit with the fire shot on his right ribs but according to the injury sheet (Exh.PE) the inlet wound is on the left ribs of the deceased. This discrepancy appears to be the result of some mistake either on the part of Fazle Maula (complainant) or by the Investigating Officer. The fact cannot be lost sight of that the complainant was examined as a witness in the case after about 9 years of the occurrence.
The bloodstained shirt of the deceased along with the blood-stained earth, grass and sand recovered from the spot were forward&I to the Chemical Examiner for analysis, whose report is in the positive. This can be taken as a piece of corroborative evidence coupled with the existence of a motive for the offence and the abscondence of the appellant from 12-9-1974 to 25-2-1981 i,e, for a period of more than 6 years.
11. On a careful analysis of the entire evidence available in the case we have come to the conclusion that the case against the appellant stands proved beyond any shadow of reasonable doubt and he has been rightly convicted and sentenced under section 302, P.P.C. His conviction and sentence are, therefore, maintained and the appeal having no merit is accordingly dismissed.