' RAZA AHMAD KHAN J.---This appeal is directed against the judgment of learned Additional Sessions Judge, Peshawar dated 11-12-1989 whereby Rahim Bakhsh accused, appellant herein, was convicted under section 302, P.P.C. And sentenced to life imprisonment with benefit of section 382- B, Cr.P.C. And to pay a fine of Rs,5,000 in default whereof the appellant was to further undergo one year's S.I. The appellant was also directed to pay Rs,20,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Pir Bakhsh, a brother of the appellant, and Taj Muhammad another co-accused, who faced their trial alongwith the appellant for the murder of Waheedullah deceased as also for attempting at the lives of P.Ws. Ihsanullah and Fazal Rahim, were acquitted vide the same judgment of the learned Additional Sessions Judge, Peshawar. There is also filed a State appeal against their acquittal and a revision petition by Fazal Elahi complainant against Rahim Bakhsh for enhancement of his punishment. As all the three matters arise out of the same case, we intend to dispose them of by this single judgment.
3. Briefly stated, the facts giving rise to this case are that on 12-8-1987 at about 6-20 P.M. Fazal Elahi, the complainant herein, alongwith his father Waheedullah deceased and brother P.W. Ihsanullah as also one Taj Muhammad were on their way to bazaar, to purchase ice but, when reached near the `Hujra' of Chairman Shakar Khan, they saw Taj Muhammad alias Tajay and Pir Bakhsh as well as his brother Rahim Bakhsh, the appellant, respectively armed with rifle, pistol and shot-gun. They opened fire at the complainant party which caused fatal injuries to Waheedullah who died later. All the three accused then made good their escape. The motive attributed has been that a sister of Pir Bakhsh and Rahim Bakhsh, Mst. Shah Khubana, was married to Ihsanullah P.W. But there had arisen differences between the spouses and hence the occurrence.
4. The dead body of Waheedullah deceased was then transported to Police Station Gulbahar where Fazal Elahi lodged the report and consequently a case was registered vide F.I.R. No,350 dated 12-8-1987 at 7 P.M. Initially under section 302 read with section 34, P.P.C. After recording statements of Ihsanullah P.W. And Taj Muhammad (abandoned P.W.), the police added section 307, P.P.C. In the F.I.R.
4-A. Having prepared injury sheet, the dead body of Waheedullah deceased was sent to mortuary for post-mortem examination where Dr. Muhammad Asif found the following injuries on his person:- External: ' Fire-arm entry wound 1-1/2 x 1-1/2 inch present on the left side of abodmen 2 inches lateral from the anterior midline 3 inches below and lateral to the left nipple and four inches above and medial to the interior superior iliac spine of the left side. Charring marks present on the wound margin.
Internal: ' Walls injured. Cavity full of blood and gut contents. Paritoneum, stomach, panreas, small and large intestine, spleen, left kidney were found injured. Stomach contents present in the abdominal cavity. Contents of intestines also present in the abdominal cavity.
' In the opinion of the doctor the death occurred on account of severe shock and haemorrhage due to injury to vital organs caused by fire-arm. Time between injury and death was within thirty minutes; while between death and post-mortem examination ten to eighteen hours.
5. The prosecution produced as many as 10 witnesses, in support of its case. The accused, including the appellant, when examined under section 342, Cr.P.C. Made a general denial. They, however, while declined to offer themselves as witnesses in their own defence under section 340(2), Cr.P.C; produced Muhammad Aslam Khan as their sole defence witness whose statement was duly recorded by the learned trial Court.
6. We have heard Mr. Saeed Beg, Advocate, learned counsel for the appellant as also for accused respondents Pir Bakhsh and Taj Muhammad in revision petition and Mian Muhammad Ajmal learned Additional Advocate-General for the State as also Mr. Jamaluddin Khan, Advocate, learned counsel for the complainant at length and have perused the record of the case with their valuable assistance.
7. Assailing the impugned judgment of the learned trial Court, it is contended on behalf of the appellant that it is an unwitnessed occurrence inasmuch as out of the three ocular witnesses, Taj Muhammad has been abandoned while the remaining two are the sons of the deceased and brothers inter se, having common enmity with the accused party and as such interested witnesses.
It is further contended in this regard that, from the circumstances, their presence on the spot at the time of occurrence is highly improbable on the ground that there is a material deviation from the prosecution case set up initially and their deposition before the Court in that while in the F.I.R. All the three accused were alleged to have fired at Waheedullah deceased which proved effective, in their Court statements they have attributed particular roles to Rahim Bakhsh appellant as having fired at deceased while the other two fired at them. Learned counsel also doubted the reason of their presence at the relevant time at the spot which the prosecution gave as fetching ice from bazaar.
For, according to the learned counsel, it seems rather unnatural for the father and both the sons of going together simultaneously for purchasing ice from bazaar. He also referred to certain discrepancies in statements of the witnesses regarding accompanying the dead body to the police station as also the recording of statements of some of them in the police station or on the spot. The learned counsel doubted the motive in so far as the death of the deceased is concerned.
For, according to him it should have been Ihsanullah who could be made the victim and not his father Waheedullah the deceased. The learned counsel drew our attention to the statement of D.W.
Muhammad Aslam, a Local Municipal Councillor, in the proximity of whose Hujra the occurrence has taken place in order to support his argument that immediately after he was attracted to the spot, he found the deceased in injured condition though in coma but did not find P.Ws. Fazal Elahi and Ihsanullah or Taj Muhammad present there.
8. The learned counsel also found fault with the medical evidence particularly the failure of the doctor to weigh the pellets recovered from the dead body of the deceased suggesting thereby that those could be bullets and thus casting a doubt on the conviction recorded against the appellant who has allegedly applied shot-gun in the commission of offence. He, therefore, urged that besides being an unwitnessed occurrence, for the foregoing reasons and the evidence of the prosecution, the case has not been proved against the appellant beyond reasonable shadow of doubt, and therefore, he is entitled to acquittal.
9. As against this the learned counsel for the State, while supporting the impugned judgment of the learned trial Court, vehemently refuted the assertion relating to the non-presence of the two witnesses, namely, Fazal Elahi and Ihsanullah, the sons of the deceased and submitted that there is nothing on the record to raise such legitimately reasonable doubt as to their presence on the spot.
In this regard he referred to the evidence of both these witnesses for the prosecution where they gave a reasonable explanation of their accompanying their father to fetch ice from the bazaar in that all the three were running separate and independent kitchens. He also submitted that the report was lodged with promptitude and there being no delay in lodging thereof, even the remotest possibility of bringing a false charge against any of the accused named in the F.I.R. Including the appellant, stands excluded. Again, he also referred to the medical evidence which shows injuries caused not only by the shot-gun but from a close range also which, when read with the site plan, lends credence to the ocular version whereby the appellant is said to have fired at the deceased from a distance of about one pace with shot-gun. Regarding the motive, the learned counsel for the State also relied on Exhs.P.F. And P.F.1 made by the complainant party to the police, from time to time, expressing their apprehensions at the hands of the accused party. There is yet another document Exh.D.W.1/X which, according to the learned counsel for the State, is also relevant qua the motive whereby, it appears that the accused party wanted the hand of a daughter of deceased presumably in exchange of marriage of Mst. Shah Khuban already taken place with Ihsanullah but the Jirga, set up to resolve the controversy, gave a verdict against the accused party. The learned counsel for the State then referred to another aspect of the case in that the appellant could not furnish any explanation for their abscondence for over 7 months and his plea, that he was not aware of the charge against him is patently false in view of the fact that there exists a relationship between the parties through marriage of Ihsanullah P.W. With the real sister of the appellant and that they also reside not far away from the residence of the complainant. He, therefore, submitted that, while he would not press the State Appeal against the acquittal of Pir Bakhsh and Taj Muhammad, he would support the revision petition whereby the enhancement of the punishment of the appellant is prayed for.
10. Mr. Jamaluddin Khan, Advocate learned counsel for the complainant contended that under section 367(5), Cr.P.C. Once the accused is held guilty under section 302, P.P.C., the normal penalty is death and in awarding lesser punishment, to record reasons therefor is imperative which are not forthcoming in the instant case and as such the sentence awarded to the appellant is not according to law. He, therefore, prayed that normal penalty of death should be awarded to the appellant which is also in the fitness of the circumstances of the case.
11. We have given our serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
12. Taking up first the point regarding the veracity of two eye-witnesses, namely, Fazal Elahi and Ihsanullah qua their presence on the spot at the time of occurrence, we are afraid, the reasons advanced in support of his contention in this regard by the learned counsel for the appellant, although appear attractive on the face of it yet loses their importance, firstly because mere relationship with the deceased shall not render their testimony as that of interested witnesses, nor their enmity with the accused can invariably be construed as a motive to falsely implicate them.
On the other hand the statements of such witnesses are to be scrutinized keeping in view the overall circumstances of the case and their intrinsic value is to be judged albeit on the principle of sifting the chaff of falshood from the grain of truthfulness inasmuch as maxim of falsus in uno falsus in omnibus has been held by the superior Courts of Pakistan as inapplicable in such like cases.
13. In this regard the finding of the learned trial Court, who had a better opportunity to watch the witnesses giving out the narrations of events, has observed as follows:-- "It is a broad daylight occurrence and accused were previously known to the P.Ws., therefore, no question of mistaken identity arises, both the eye-witnesses have given consistent statements which are corroborated in all material aspects. The occurrence took place on 12-8-1987 and it has been mentioned in the F.I.R. That all the accused had fired at the deceased, but on the same day statement of Ihsanullah P.W. Was recorded under section 161, Cr.P.C. Wherein he stated that only accused Rahim Bakhsh had fired at the deceased with a shot-gun while Taj Muhammad and Pir Bakhsh fired at the P.Ws. And the deceased received a single fire-arm injury by the hand of accused Rahim Bakhsh. P.W. Fazal Elahi and Ihsanullah when examined in the Court also re- iterated the same statement. The learned defence counsel urged that P.Ws. Made improvements in their previous statements. As already discussed that P.W. Ihsanullah never charged accused Pir Bakhsh and Taj Muhammad for causing injury to his father while P.W. Fazal Elahi in his report had stated that accused had fired at the deceased and he did not charge them for firing at the P.Ws. As a matter of fact the F.I.R. Was lodged within 40 minutes of the occurrence and a son was bringing the dead body of his father to the police station for making a report and if he had failed to give all the details of the incident in the F.I.R. Then it would not be sufficient to brush aside his testimony. It is settled law that F.I.R. Is not an exhaustive document and its contents must be sufficient to show the commission of an offence and not entire details of the occurrence. This possibility cannot be ruled out that the witness could not judge the object of accused Pir Bakhsh and Taj Muhammad at the time of occurrence. The learned defence counsel further argued that in fact the witnesses made improvements in their statements after the post-mortem examination report when they came to know that only one fire-arm injury was found on the person of the deceased. In the instant case postmortem was conducted on 13-8-1987 at 7-30 a.m. While the statements of P.Ws. Ihsanullah and Taj Muhammad (not produced) were recorded on 12-8-1987, therefore, it cannot be presumed that P.Ws. Made their statements under section 161, Cr.P.C. In order to bring their testimony in consonance with the post-mortem report."
' Similarly the doubts expressed on the factum of the two witnesses accompanying the deceased at the relevant time in order to fetch ice has been held by the learned trial Court as not totally unnatural and in this regard his findings are as under:-- ' Ihsanullah were running business in Gandab Mohmand Agency and had come to their houses on the event of Eid. All the P.Ws. And deceased were going to the Bazar in order to fetch ice and accompanying of the P.Ws. With the deceased was not unnatural because they used to meet occasionally being residing at different places. There is no delay in making the report and if the P.Ws. Were not available at the spot then how could they accompany the dead body to the police station just after the occurrence."
And we fully subscribe to and approve what has been expressed by the learned trial Court above and feel no hesitation in holding that not only both the eyewitnesses were present at the spot at the time of occurrence but their statements in Court inspire confidence and as such potrary a correct narration of the events wherein the deceased succumbed to his injuries caused by firing at him by the appellant.
14. Regarding the statement of D.W. Muhammad Aslam, a witness for defence, whose Hujra undisputedly lies close to the place of the occurrence, save his statement, there is no evidence of his reaching the spot soon after the occurrence but proceeding on the assumption that he did so, even then what he has stated in Court in his deposition, we notice that, he reached after some time when a crowd of people had collected at the spot already. Furthermore, in his very examination-in- chief, the part of his statement to the effect that he had not noticed the sons of the deceased at the spot as they were not known to him at that time "whereas does not exclude the presence of P.Ws. Fazal Elahi and Ihsanullah from there, belies his own statement before police record under section 161, Cr.P.C. (copy placed on the record as Exh.D.W./1) wherein he was categorical that "the sons of the deceased took him to the police station after putting the dead body on a cot" suggesting thereby that the two ocular witnesses were not only present there but already known to him too. Again, we find that he acted rather against normal human conduct in that despite seeing a crowd gathered at the spot, neither he asked any member thereof as to who was the culprit nor did he make any inquiry in this regard, till the last, from the surrounding shopkeepers or dwellers of the nearby houses. The overall reading of his statement, we regretfully observe, does not leave a fair impression on our minds nor does it appear carrying credibility on material aspect of the case and as such we find his deposition not of any avail to the appellant.
16 . About the medical evidence, whereas it not only conforms the version of the occurrence as given out by the ocular evidence, the dimensions of the inlet and exit injuries undoubtedly suggest that it is the result of shot fired by a shotgun and that too from a close range; moreso when, as stated by the doctor, the 4 pellets recovered from the dead body, were accompanied with one plastic wad and a card wad which are found in a cartridge, and not in a bullet as the learned counsel for the defence wants us to believe.
17. Finally, the motive advanced by the prosecution in our view, stands proved and in fact it has not been controverted by the learned counsel for the appellant either. His sole grievance in this behalf was that for the accused, the , best victim out of all the three persons, namely, the deceased and his two sons . I would have been Ihsanullah with whom was married, though not much happily, Mst.
Shah Khubana the sister of the appellant. A perusal of the record, on the other hand, reveals that the real bone of contention was the refusal of the deceased to give the hand of his daughter Mst.
Zahida to a brother of the appellant and he was one of the two brothers, Pk Bakhsh being the other one, who felt annoyed over it and extended threats which were dully reported to the police as per report Exhs. P.F. And P.F./1.
18. Last piece of evidence, which is so vehemently pressed into service by the prosecution against the appellant, was the abscondence soon after the occurrence. It is on the record that warrants of arrest under section 204, Cr.P.C. And proclamations under section 87, Cr.P.C. Were duly issued against him but he surrendered almost after more than 7 months for which, we are afraid, his explanation to the effect that no one came to arrest him and it was only after 7 months of the occurrence that he learnt of the said event, seems to be devoid of any reasonability. For, and we tend to agree with the learned Additional Advocate-General that, known to each other by the bonds of inter-marriage and residing almost in one city, it does not sound plausible that the news of murder of Waheedullah travelled to them after more than 7 months. We are, therefore, of the considered opinion that his duly proved abscondence provides a cogent piece of corroborative evidence to bring home the guilt to the appellant.
19. Viewed in the perspective of the foregoing discussion, we have arrived at an inescapable conclusion that not only the appellant has been rightly charged but the prosecution has amply succeeded to establish its case against him beyond any shadow of doubt and that he has rightly been convicted by the learned trial Court, and we hold accordingly.
20. With regard to the sentence, and in the wake of this we would also decide the revision petition whereby the quantum of sentence is called into question, the learned counsel for the complainant is not far wrong in submitting that having found the appellant guilty under section 302, P.P.C.
Avoiding of normal penalty of death on the part of the learned Sessions Judge was not legal in stricto senso. For, section 367(5), Cr.P.C. Clearly envisages reasons, to be recorded while resorting to penalty other than the normal one, which we are afraid, are clearly lacking in the impugned judgment. We would like to impress that such failures on the part of the trial Court render the sentence so passed violative of the law and, in awarding lesser penalty, reasons must be recorded for the same. For the present, however, having been given expectency of life to the appellant, we, in the circumstances of the case as well, will not interfere with, and rather would maintain, the sentences awarded to the appellant.
21. Resultantly this appeal fails and is hereby dismissed. The State appeal, having not been pressed, also stands dismissed. So is, for the foregoing reasons, the revision petition filed by the complainant.