' WALI MUHAMMAD KHAN, J.--- Azim Gul convict-appellan. Has challenged the order dated 23-4- 1988, passed by the learned Additional Sessions Judge-I, Charsadda, whereby he was convicted under section 302, P.P.C. For the murder of Niaz Muhammad deceased son of Ajoon complainant (P.W.8) and sentenced to life imprisonment and a fine of Rs,5,000, in default whereof further six months' S.I. With a further direction for payment of compensation of Rs,15,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., in default whereof to undergo further six months' S.I.
Ajoon complainant has also filed revision petition (No,41 of 1988) for the enhancement of sentence and substantial increase in the compensation under section 544-A, Cr.P.C. Through this single judgment both the appeal and revision are being disposed of.
2. The facts of the case as gleaned from the record are that on 22-7-1985 at evening time Azim Gul convict-appellant went to the house of complainant Ajoon, his father-in-law, armed with topak for bringing back his wife to his house, who was staying there on account of strained relations with her husband, convict-appellant. The deceased Niaz Muhammad did not allow his sister Mst. Yasmin to accompany her husband, convict-appellant, which led to altercation between them. The convict- appellant left the house and was immediately followed by the deceased, the complainant Ajoon (P.W.8), Majnoon nephew of the complainant (P.W.9) and one Said Karim. When they covered some distance from the outer door of their house, the convict-appellant turned round and fired a shot at the deceased Niaz Muhammad from point blank range hitting and injuring him as a result of which he fell down on the ground and died. Mst. Bakht Zari armed with a pistol, Noor Badshah, Karim Bakhsh and Fazal Karim armed with topaks, were standing nearby and they fired at the complainant Ajoon but missed him and then, all of them decamped from the spot. The deceased was placed on a cot and taken to the police station Prang, situated at a distance of 5/6 miles from the spot in a Suzuki Van where the complainant Ajoon (P.W.8) lodged the report to A.S.I. Sardar Khan (P.W.2), who recorded the same vide F.I.R. Exh.PA. The same was read over to the complainant and he, after admitting the same as correct, thumb-impressed the same. The A.S.I. Then prepared the injury sheet Exh.P.M. And inquest report Exh.P.M./1 of the deceased and despatched the dead body to the mortuary for post-mortem examination under the escort of Malak Shah F.C. (P.W.3), where on the identification of Majnoon (P.W.9), autopsy was conducted by Dr. Mubarik Hussain (P.W.11). The A.S.I. Sent the copy of the F.I.R. To the S.H.O. For embarking on the investigation of the case.
3. On receipt of the copy of F.I.R. Darvesh Khan S.H.O. (P.W.10) proceeded to the spot and prepared the site plan Exh.P.B. With all its footnotes and sketches correctly. He recovered empty of .12 bore Exh.P.1 having smell of freshly discharge and sealed into parcel vide memo. Exh.P.H. In the presence of Mehr Gul (P.W.4), who denied the recovery in his presence but admitted his signature on the memo. As well as that of Sakhi Jan another attesting witness who was abandoned as won over. At the time of spot inspection the Investigating Officer found bulb of 100-W Exh.P.2, lit over the wall of the shop of the complainant near the scene of occurrence and he took the same into possession vide memo. Exh.P.R./1. Malik Shah F.C. (P.W.3) was entrusted with one shirt Exh.P.3 and Banyan Exh.P.4, both blood-stained belonging to the deceased, by the doctor and he produced the same before the Investigating Officer on the following day viz. 23-7-1985 which he took into possession vide memo. Exh.P.R./2 in the presence of Malik Rizwanullah (P.W.6) and Dalasa Khan (P.W.7). It is worth mentioning at this juncture that the doctor had also recovered one pellet and one cardboard from the abdominal cavity of the deceased which he had sealed into bottle and handed over to the F.C. For production before the Investigating Officer, but for reasons best known to the Investigating Officer, these two articles have neither been taken into possession through any memo. Nor exhibited during the trial of the case. Efforts for the arrest of the convict-appellant were made but since he was not traceable, warrant under section 204, Cr.P.C. Was obtained from the Illaqa Magistrate and was entrusted to D.F.C. Sardar Akbar (P.W.1) who made a search for him in his village and the surrounding villages but could not succeed in apprehending him and consequently returned the warrant Exh.P.S./1 unnerved. This led to the issuance of the proclamation under section 87, Cr.P.C. Which was also entrusted to the same D.F.C. Who as, per his statement in Court, pasted one copy thereof on the outer door of the house of the convict-appellant, one copy on the notice board of the Court and returned the third copy Exh.P.S./2 alongwith his compliance report. The Investigating Officer sent the blood-stained clothes of the deceased to the Chemical Examiner for chemical analysis vide his application Exh.P.L. And the result in positive Exh.P.L./1 is on the file. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C. The other accused mentioned in the earlier part of the judgment, had been arrested by the S.H.O. During the course of investigation and, therefore, he submitted complete challan against them under section 302/307/148/149, P.P.C.
And for proceedings under section 512, Cr.P.C. Against the present convict-appellant. The arrested accused were sent up for trial to the Court of Sessions by the Illaqa Magistrate wherefrom they were acquitted vide order of the then learned Additional Sessions Judge Charsadda, dated 14- 71986. On 20-9-1986 the convict-appellant surrendered himself before the police in the police station and he was arrested by Nabiullah S.I. (P.W.12). After the formal investigation, supplementary challan was submitted against him by Muhammad Sher Khan (P.W.5) who had by then took over as S.H.O. Of the police station concerned whereupon the Illaqa Magistrate sent up the convict- appellant to the Court of Sessions for trial.
4. Charge-sheet on three counts was framed against the convict-appellant, to which he pleaded not guilty and claimed trial. The prosecution produced Sardar Akbar Khan F.C. (P.W.1), Sardar Khan A.S.I. (P.W.2), Malik Shah F.C. (P.W.3), Mehr Gul (P.W.4), Muhammad Sher Khan S.H.O. (P.W.5), Rizwanullah (P.W.6), Dalasa Khan (P.W.7), Ajoon (P.W.8), Majnoon (P.W.9), Darvesh Khan S.H.O.
(P.W.10), Dr. Mubarik Hussain (P.W.11) and Nabiullah Khan S.H.O. (P.W.12) in support of its case and abandoned the rest of the P.Ws. Either as won over or unnecessary. Of them Ajoon (P.W.8) and Majnoon (P.W.9) are the ocular witnesses whereas the others are of formal nature connected with the investigation of the case and their depositions have already been referred to in he prFcedin are Muscles injured at the site of injuries. 5th lumber vertebrae fractured. Left iliac bone fractured.
5. The convict-appellant was examined under section 342, Cr.P.C. And he denied all the allegations brought out against him in the prosecution evidence. About his abscondence he submitted that he had no knowledge of the charge against him and the moment he became aware of the same, he surrendered himself voluntarily to the police. He admitted his relationship with the complainant party but denied having strained relation with them or his wife. He also appeared on oath as his own witness under section 340(2), Cr.P.C. Where too he claimed innocence from the charge levelled against him. Under cross-examination he stated to have gone to Karachi a year prior to the occurrence in search of labour and till the time of his surrender to the police, he had no communication whatsoever with his family members. He deposed that he has good cordial relations with his father-in-law, his wife as well as P.W. Majnoon. However, according to him, the murder of the deceased had taken place in `Soor Pul' situated at a distance of half a mile from the spot. On the appraisal of the evidence so produced before him, the learned Additional Sessions Judge-I, Charsadda found the convict-appellant guilty of the offence of murdering Niaz Muhammad deceased and convicted and sentenced him as stated earlier in the introductory part of this judgment.
6. Dr. Mubarik Hussain (P.W.11) conducted autopsy on the dead body of the deceased Niaz Muhammad at 7 a.m. On 23-7-1985 and found the following:-- ' EXTERNAL EXAMINATION ' A young man of average physique rigor mortis, P.M. Staining present. Wearing one shirt, one Banyan, one Shalwar.
' WOUNDS
(1) An entrance wound of F.A. In the umbilical region about 1-1/2" below into the right of umbilicus 3/4" x 3/4" charing present.
(2) An exit wound of fire-arm on the back of left renal area in the lower part 1/3" x 1/3" corresponding to wound No,1.
' INTERNAL EXAMINATION. Cranium and spinal cord.
' 5th lumbar vertebrae fractured. Cauda acquina damaged.
' ABDOMEN ' Walls, peritoneum injured. Stomach healthy containing food. Small intestines injured containing digested food. Large intestines injured containing faecal matter.
' MUSCLES AND BONES ' OPINION ' In his opinion the deceased died of shock and haemorrhage and injuries to the viscera (intestines) by fire-arm.
' One pellet recovered from the upper part of the buttock handed over to police alongwith one cardboard recovered from the abdominal cavity in a sealed bottle.
' Probable time between injury and death: Within half an hour. Probable time between death and post-mortem: About eleven hours.
7. Ajoon complainant (P.W.8) deposed that he had invited Said Karim (abandoned P.W.) who had come from Saudi Arabia for dinner on the day of occurrence; that after taking their meals, the convict-appellant Azim Gul, armed with topak, also came there who was served with tea where after he expressed his desire to take his wife, the daughter of the complainant, to his house who was there on account: of their strained relations; that Niaz Muhammad deceased resisted the offer as it was too late which led to exchange of hot words between them; that the convict-appellant went out of the house, followed by the deceased and the other male persons present in the house and no sooner the convict-appellant covered a distance of six paces from the outer door of the house, he turned back and fired one shot at the deceased hitting and felling him on the ground.
Majnoon (P.W.9) corroborated the version of the complainant on all material particulars. The said ocular testimony though tendered by closest relative of the deceased was found worthy of credence by the learned trial Judge and on its basis the impugned order was passed.
8. The learned counsel for the convict-appellant disagreeing with the conclusions arrived at by the learned trial Judge vehemently argued that the eye- witnesses being closely related with the deceased were highly interested and could not be relied upon for the conviction of the convict- appellant; that they had already been disbelieved regarding part of their deposition whereby they implicated the acquitted accused in the instant transaction; that the witnesse have resorted to substantial improvements in their deposition to cover up the discrepancies in the ocular account and the circumstantial evidence; that there was delay in the lodging of the report; that the F.I.R.
Was recorded after preliminary investigation; that the pellet and the cardboard recovered by the doctor from the dead body of the deceased at the' time of post-mortem examination is still a mystry and its deliberate Suppression by prosecution create a reasonable doubt, the benefit whereof must go to the accused. The learned State counsel assisted by the counsel for the complainant controverted all these submissions of the defence counsel and explained that the eye-witnesses were equally related to the convict-appellant and they could not be expected to level a false charge against their own in-laws, for a charge which carries capital punishment; that the lapses on the part of the Investigating Officer, if any, cannot in any way adversely affect the veracity of the eye-witnesses; that the circumstantial evidence fully corroborates the eye-witness account and that the abscondence of the convict-appellant, for considerable length of time clearly pointed towards his guilt.
9. We have anxiously considered the arguments of the learned counsel on either side. No doubt the eye-witnesses are closely related to the deceased but their version cannot be brushed aside simply on this score because they are equally related to the convict-appellant and in the ordinary course of nature they A are presumed to think hundred times before levelling a false charge and that to of murder against the convict-appellant in substitution of the real culprit. Nol motive for a false charge has been attributed by the convict-appellant against the complainant party. Rather in his statement on oath he has positively stated that his relations with his in-laws have been very cordial all along and that there was no enmity or illwill between him and Majoon (P.W.9). He has even denied the allegation of strained relations between him and his wife. To declare a witness as interested one sufficient material has to be brought on record to show that not only the witnesses are inclined in favour of the prosecution but have so much animosity towards the accused-party that they themselves are bent upon harming the accused physically and financially. In the instant case nothing of the sort has been alleged muchless proved, with the result that we can safely hold that the witnesses are not interested and reliance was rightly placed on them by the learned trial Judge.
10. Nevertheless, much effort was made to recoil on their veracity. It is established principle of criminal law that even an interested witness can be relied upon if his deposition is materially corroborated by the other facts and circumstances of the case. The recovery of .12 bore empty from the spot by the Investigating Officer immediately on his visit to the scene of occurrence, coupled with the recovery of pellet and cardboard from the dead body of the deceased is a circumstance which lends support to the version of the complainant in the F.I.R. That the convict- appellant was armed with a shotgun which he used in the commission of offence. The charring marks on the clothes and wound of the deceased corroborate the theory of the prosecution that the deceased was fired at from close range. The presence of the eye-witnesses on the spot at the time of D occurrence is natural on account of the house of the complainant being situated close to the scene of occurrence and the time being just after evening prayers time. There is no delay in the lodging of F.I.R. Made in the police station situated 5/6 miles from the spot, at 9-30 p.m. Viz. After 1- 1/2 hours. The sudden andl unexpected tragedy followed by the hue and cry of the womenfolk and the necessary arrangements for Suzuki for the transportation of the dead body from the spot to the police station must have consumed this much time and the contention of the learned counsel for the convict-appellant that there was delay in the lodging of the F.I.R. Is devoid of any force. The convict-appellant has directly E charged in the promptly lodged F.I.R. By the complainant, his own father-in-law, for firing at the deceased, his own brother-in-law, with the shotgun in his possession and murdering him. The names of Majnoon (P.W.9) and Said Karim (abandoned P.W.) were mentioned in the F.I.R. As the persons having seen the occurrence. The conduct of the convict- appellant in making himself scarce immediately after the occurrence and remaining fugitive from justice in spite of the warrant of arrest under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Having been issued against him is a strong piece of corroborative evidence against him.
He also did not surrender in the proceedings under section 512, Cr.P.C. Being conducted against him in the Court of law. His explanation that he was unaware of the murder of his own brother-in- law is not convincing because on his own showing, he was at Karachi and in the normal course of events he was expected to inquire about the well-being of his wife and other family members. His absence from the village for such a long time and surrendering himself to the police only when his co-accused were acquitted is indicative of his guilty mind. We are, therefore, convinced that the eye-witnesses are not only the natural and truthful witnesses but their depositions are substantially corroborated by the other circumstances of the case as well.
11. As regards the principle that credibility of witnesses is not divisible based on the maxim: Talsus in uno falsus in omnibus' suffice it to say that the same is merely a rule of caution and has no binding force. This is not of universal application and is to be deviated from if the grain can be sifted from the chaff. There is wealth of case-law on the point and in this respect Khanan Khan and others v.
The State PLD 1966 (W.P.) Pesh. 232, Khanan and others v. The State 1968 SCMR 1314 and Muhammad Shafi and 4 others v. The State 1974 5 C M R 289, can be referred to. In the case in hand the acquitted accused were charged for ineffective firing at the complainant after the deceased had already been fired at by the convict-appellant and done to death. In the absence of any strong corroborative evidence the then learned Additional Sessions Judge was justified in extending the benefit of doubt to the co-accused, and acquitted them. However, the case of the convict-appellant is distinct from that of the acquitted accused and as fully discussed in the preceding paras. Of this judgment, the charge against the convict-appellant is not only supported by independent evidence but is corroborated by the circumstantial evidence as well. The maxim is accordingly not attracted to the instant case.
12. The non-production in Court of the pellet and the cardboard, recovered from the dead body of the deceased, cannot adversely affect the prosecution version. Dr. Mubarik Hussain (P.W.11) positively stated in his statement in Court that he recovered one pellet and one cardboard from the dead body of the deceased which he handed over to Malik Shah F.C. (P.W.3). The F.C. In his statement as P.W.3 supported the doctor and stated on oath that he was entrusted with a sealed bottle containing a bullet/pellet extracted from the dead body of the deceased at the time of post- mortem examination by the doctor which he produced before the Investigating Officer on the spot alongwith the blood-stained clothes of the deceased who took the same into his possession vide memo. Exh.P.R./2. The non-production of the same during the trial can at best be termed as inefficiency or extreme negligence on the part of Investigating Officer, or may be for any ulterior motive but the same cannot in any way benefit the defence because the extraction of these articles from the dead body of the deceased is fully established from the statements of independent witnesses like Dr. Mubarik Hussain and Malik Shah F.C.
13. In view of what has been stated above, we do not find any legal or factual error in the conclusions arrived by the learned trial Judge. We accordingly maintain his impugned order of conviction and sentence passed against the convict-appellant and dismiss the instant appeal.
Since the occurrence was the result of a sudden quarrel between the deceased and the convict- appellant and there was no premeditation and pre-planning, the learned trial Judge has rightly exercised his discretion in awarding the lessor penalty provided under the law and we are not inclined to interfere with the same.
14. Resultantly the appeal and the Criminal Revisions No, 41 of 1988 both are dismissed. However, the convict-appellant is given the benefit of section 382-B, Cr.P.C. Which the learned trial Judge has inadvertently not extended to him.