' MUHAMMAD AZAM KHAN, J.--The appellant, Taj Muhammad by name, and his son Shah Muhammad, stood trial for an offence under section 302/34, P.P.C. On the allegation of having murdered Rukanuddin deceased by firing at him in execution of common intention alongwith another son of the appellant, named Said Muhammad, before learned Additional Sessions Judge, Kohat, who vide order, dated 17-5-1987 found the appellant guilty and sentenced him to suffer life imprisonment and also to pay a fine of Rs, 20,000 or in default to suffer further R.I. For two years, but acquitted Shah Muhammad extending to him the benefit of doubt. The said order is in question before us in this appeal.
2. The case is one of sudden occurrence. There was no pre-planning or premeditation, nothing of the sort. A row suddenly erupted between the parties over the question of taking of water through an irrigation channel during which the appellant and another in his company are alleged to have resorted to firing which resulted in causing death of the deceased. As per report of Badaruddin who was in company of the deceased at the time of incident and claimed to have seen him being injured at the hands of the appellant and others, the allegation was that he alongwith his brother deceased Rukanuddin, Chamkan Shah and Haji Mastan Gul was present in the garden where an altercation between him and Taj Muhammad appellant and his sons Said Muhammad and Shah Muhammad in regard to the water channel arose and during it Taj Muhammad and Said Muhammad fired twice one after another at his brother from 'topaks'. The same hit the deceased and he dropped to the ground. While the deceased so lay on the ground, Shah Muhammad pelted him with a stone. Later while the deceased was being brought in injured condition he expired in the way. The occurrence was witnessed by Chamkan Shah and Haji Mastan Gul afore-mentioned.
3. The report set the process of investigation rolling. S.I. Mukhtar Ahmed (P.W.8) who took down the report immediately arrived on the scene and made spot inspection. During the course of spot inspection he observed blood at the place where the deceased was shown to have collapsed on receipt of the fire. Shots and same he collected alongwith an empty of 12 bore lying some steps away, under different memos. He also drew up site plan and after examining the witnesses and apprehending the accused referred the case for trial.
4. Dr. Sajjad (P.W.9) conducted post-mortem examination of the deceased the same day i.e, 7-2- 1984 at 10-30 A.M. And noticed on his person five fire-arm wounds (1) 1/4" x 1/4" (2) 1/4" x 1-1/4"
(3) 1/4" x 1" x 1" (4) 1/4" x 1/4" and (5) 1/2" x 1/2". Due to these injuries, the doctor opined, death was suffered by the deceased.
5. Apparently, in consequence of fire-arm wounds noted above, the deceased had lost his life, but the question that falls to be settled by us is if it was at the hands of the appellant or any of his two sons, both of whom are stated to have died in the meanwhile, the injuries were received. The learned trial Court on consideration of the evidence has held that the appellant was responsible for causing the injuries. In so finding it has relied on the evidence of Burhanuddin, the complainant, which appeared to it to have been supplemented by that of Chamkan Shah and Haji Mastan Gul (P.Ws). In addition, the learned Court has also referred to the recovery of empty (Exh. P.6) and blood-stained earth as corroborative proof of the story. But the learned appellant's counsel, Mian Shakirullah Jan, Advocate, has regarded the evidence as totally inadequate and far short of the standard required to establish a charge of murder. Analysing the evidence, he submitted that the evidence of Chamkan Shah, Haji Mastan Gul and Peshawar Khan (P.Ws.) could not be legally taken into consideration, as they deposed nothing in favour of the prosecution. In fact, in keeping quiet about how the deceased got killed and at whose hands, he submitted, they had damaged the case of prosecution completely. He pointed out that it was against the universally accepted principle that the learned trial Court had acted in seeking corroboration from their police statements recorded under section 161, Cr.P.C. Such statements, he argued, were riot admissible in evidence and could be used only to contradict their makers by confronting them with the same.
These statements, copies of which were placed on record as Exh. D.A., D.B. And D.C. Were not confronted to their makers. Their attention was never drawn to the fact that the police had any such statements on record, attributed to them. Accordingly, he urged, these statements would have to be ignored wholly and if that was done there would remain in the field the sole statement of brother of the deceased, the complainant, which alone would not be enough to prove the case. {{PAGE CUTT}}
7. We are agreeable to endorse the view of learned counsel for the appellant as regards the police statements of P.Ws Chamkan Shah, Haji Mastan Gul and Peshawar Khan. These statements were inadmissible in evidence and have been wrongly relied upon by the trial Court. Such statements have to be first put to their makers in order to become admissible and that is required to be done where it is desired to contradict the makers. Here, clearly no such occasion arose, no reference having been made to the said statements either by any of the makers personally or by the prosecutor or by the defence counsel. In fact, what was called for was that the prosecutor should have quested the Court that the witnesses had turned hostile, as they had, having kept quiet with regard to how the incident be declared as such. The prosecutor appears to because the record has nothing to show result appears to have been of the Court for This brings us to the testimony of Burhanuddin, the complainant. It is plain and simple, as was the version earlier given by him when he reported the incident, except of course, some very inconsequential additions that he had to make in order to supply full details of the incident. That, in 'law, we are of the view, was permissible to do because F.I.R. Cannot be supposed to be a complete document, mentioning all the requisite details. He also seems to us to C have not imported any extra material betraying an enxiety on his part to improve the case. In fact, whatever new he said at the trial was intended to show that they had a right to utilise the water channel. Whether or not they had the right to take water through the channel would be beside the point, because it was not the case of the appellant that they had acted in defence of their person or property. Accordingly, we feel inclined to accept the testimony of Burhanuddin. The same is corroborated by the recovery of crime D empty (Exh. P.6) which by the fire-arm expert was found to match with the gun (Exh. P.1) seized from the appellant.
8. Basing on the admission of P.W.2 Muhammad Shah to the effect that the mother of the appellant had in his presence apprised the I.O. Of having sustained injuries on the spot, learned counsel for the appellant tried to make out a case of self-defence, contending that the appellant having seen his mother to have been injured at the hands of the deceased and his brother, had got the right to retaliate and to launch counter assault on them. In doing so, continuing he argued, the appellant might have exceeded the right but in a situation like that it would be likely to so happen. We discern nothing on record indicating as to how and in what manner the mother of the appellant got injured. All that is there is admission both by P.W.2 and the I.O. To the effect that she had appeared before them and accused the deceased and his brother complainant Burhanuddin of causing her injuries. No report from her was taken either by them or was a complaint lodged by her independently. It seems that the I.O. Did not take any action for the reason that the injuries of Mst.
Bakht Bibi, the appellant's mother, were simple in nature and in case of such injuries the police takes no action. Be that as it may, Mst. Bakht Bibi was free to move the relevant Court by a personal complaint in order to set up a counter case. She did nothing of the sort and we see no justification to extend to her any benefit in respect of a matter for which she having a right to act did not act. {{PAGE CUTT}}
9. As said above, we find the evidence of complainant Burhanuddin to be fairly acceptable. Same is supported by the crime empty (Exh. P.6) found matching with the appellant's gun. Doubtless he is a brother of the deceased, but has not in any way behaved, in giving evidence that could render his words unworthy of reliance. He as also the deceased had no enmity with the appellant or his sons. This was the first incident where they got involved, following that sparked off suddenly. As such, there was nrs on his part that he wished to satisfy in the appellant or his sons. He benefit in reckoning the period of detention that he will spend in Jail, serving out the sentence passed on him, will be extended to him under section 382-B, Cr.P.C.