1. MUHAMMAD ISHAQ KHAN,. J: -- Saiful Malook (60/61) son of Khan Sardar and his son Rasta Baz (38/40),, residents of Kotka Muzaffar Khan, Nogari Mamash Khel, Police Station Cantt. Bannu were convicted of the offence of murder of Nazar Ali deceased, under section 302/34, P.P.C. And were sentenced to imprisonment for life and a fine of Rs.10,000 or in default to suffer further rigorous imprisonment for three years, by the judgment dated 30-1-1989 of the Additional Sessions Judge, Bannu. Out of the fine, if realised, 2/3rd of it was directed to be paid to the heirs of the deceased.
2. Aggrieved by their conviction and sentences, both Saiful Malook and Rasta Baz have preferred joint Criminal Appeal No.3 of 1989. Complainant Israr Ali has also filed Criminal Revision Petition No3 of 1989 for enhancement of the sentences to those of death as also for awarding appropriate compensation.
3. The prosecution case in brief is that on 25-7-1985 at Khuftanvela after offering Khuftan prayers, Israr Ali complainant alongwith his brother Nazar Ali and their father Guldar Ali were sitting, as usual, at their Chouk, in front of their house, gossiping. A little while later Saiful Malook armed with a gun and his son Rasta Baz armed with a .12 bore pistol arrived there and reaching near them, Saiful Malook aimed his gun at Nazar Ali and fired at him with which he was hit and fell down.
4. Simultaneously Rasta Baz also fired a shot with his .12 bore pistol at his brother Nazar Ali but it could not be ascertained if that shot too proved effective. Both the accused ran towards the street of their house. Since they were empty handed, they could not react. Nazar Ali who was then in injured condition, with the help of the villagers, was placed on the Charpai and near Tappi Qilla a Datsun was engaged on which Nazar Ali who was in precarious condition and was unable to talk was transported to the District Headquarters Hospital, Bannu while the complainant himself went to the Police Station Cantt. Bannu and lodged the report. The motive for the offence was previous attempted murder. The occurrence was alleged to have been witnessed besides Israr Ali complainant his father Guldar Ali in the electric light.
5. The report about the incident was recorded by Asghar Ali Shah then, S.H.O, Police Station Cantt.
6. Bannu vide F.I.R. (Exh. P.B.). The Investigating Officer had hardly concluded the report of the complainant when he was conveyed a message by Jan Muhammad A.S.I. From the District Headquarters Hospital, Bannu that Nazar Ali has succumbed to the injuries. A case under section 302/34, P.P.C. Was accordingly registered against both the accused. After registration of the case, the 10 proceeded to the spot in the company of the complainant and the police party. On reaching the spot, he found electric bulbs burning and he summarily inspected the spot, in the light of those bulbs. He took into possession two bulbs of 100 and 200 Watts respectively vide memo (Exh. P.E).
7. Protecting the spot, he deferred further inspection to the following day. On the following day although blood was lying on the spot but it was not capable of taking into possession. Two cardboard discs of .12 bore were taken into possession vide memo (Exh. P.F). The house of the accused was searched but they were not available. The 1.0. Prepared the site plan (Exh. P.G.) at the instance of the eye-witnesses. He also took into possession blood-stained shirt having cut marks belonging to the deceased and one phial containing five pellets, which was sent to him by the doctor after post-mortem examination of the dead body of Nazar Ali deceased. He recorded the statements of the P.Ws. Obtained warrants under section 204, CT.P-C. Against the two accused.
8. Subsequently he obtained proclamations against them. The accused were declared absconders and after completing the necessary investigation, he submitted complete challan under section 302/34, P.P.C, read with section 512, Cr.P.C. Against the accused in the Court of Illaqa Magistrate.
9. Rasta Baz accused was arrested on 4-9-1986 and accordingly he submitted supplementary challan against the said accused. Saiful Malook accused was arrested on 9-6-1987.
10. Post-mortem examination on the dead body of Nazar Ali deceased was performed by Dr. Abdur Rashid on 26-7-1985 and on external examination he found a big fire-arm inlet wound, 1-1/2" x 1", with black edges at the left hypochondria just below the left rib cage.
11. On internal examination left upper abdominal wall, peritoneum, stomach, pancreas, small and large intestines and right kidney were all found injured. Death in the opinion of the doctor was the result of fire-arm injuries causing damage to the vital organs. Five pellets had also been recovered from the right inguinal region stuck in the skin. Time between injury and death in the opinion of the doctor was half to 1-1/2 hours while that between death and post-mortem examination was 8-1/2- -11 hours.
12. Arguments of Syed Zafar Abbas Zaidi and Dost Muhammad Khan, Advocates on behalf of the appellants Ejaz Muhammad Khan, Assistant Advocate General assisted by Muhammad Khan Khakwani State counsel on behalf of State-respondent and Muhammad Karim Anjum, learned counsel for the complainant in Criminal Revision Petition have been heard and record of the case has been thoroughly examined.
13. The prosecution in this case in order to establish the guilt of the two accused for the commission of the murder of Nazar Ali deceased has placed reliance on the statement of Israr Ali (P.W.4) and his father Guldar Ali P.W. Recorded during the proceedings under section 512, Cr.P.C. Against the two accused. Israr Ali appearing at the trial gave the same version which he had given to the police at the time of lodging the F.I.R. In that after offering Khuftan prayers he alongwith his deceased brother and his father Guldar Ali were sitting in the Chouk situate near their house when a little while later Saiful Malook accused armed with a Toppak and Rasta Baz armed with .12 bore pistol came there and reaching near them, Saiful Malook fired a shot at the deceased which hit him' and brought him down to the ground. He was again fired at by Rasta Baz accused with his pistol but he was not sure if the second shot proved effective or otherwise. Both the accused were identified in the light of bulbs. The accused ran in the street of their house. He placed the. Injured on a cot with the aid of co---villagers and near the Tappi Qila they hired a Datsun and putting the injured in the same, transported him towards the Hospital while he himself went to the Police Station for lodging the report. This witness was subjected to lengthy cross--examination but nothing material has been brought on record to create the slightest doubt on the credibility of this witness. The defence by cross-examining him tried to bring the identity of the two accused in doubt by putting various questions i.e. There was a Pipal tree in the Chouk which was thick enough to throw, its shadow on the whole scene of the occurrence and that there was a water well also installed in the said Chouk.
14. This witness did not dispute the existence of both the water well and the Pipal tree but according to him these were located at a distance of 50 paces from the place of occurrence. We have carefully considered the entire evidence of this witness and nothing material has been brought on the record to falsify his deposition. His statement finds full corroboration by the statement of Guldar Ali recorded in the proceedings under section 512, Cr.P.C. During the abscondence of the two accused.
15. According to Guldar Ali on the night of occurrence after Khuftan prayers time he alongwith his deceased son Nazar Ali and P.W. Israr Ali were sitting in the Chouk in front of their house when in the meantime the two accused Saiful Malook armed with a .12 bore shotgun and Rasta Baz armed with .12 bore pistol came there and both of them were fully identified in the light of the bulbs; one fixed at the back side of the wall of their house and another at the mosque and the vicinity was fully lit.
16. Reaching near them, the two accused fired at Nazar Ali. According to him, Saiful Malook had fired the first shot with his shotgun with which Nazar Ali was hit and fell down to the ground while the second shot was fired at him by Rasta Baz with his .12 bore pistol and he was not sure if the second shot also proved effective. He stated that they were empty handed, and therefore, could do nothing and the two accused decamped in the street towards their house. He and Israr Ali with the help of the co-villagers took the deceased then in injured condition on a cot upto Tappi Qila where a Datsun was arranged. Keeping in view his precarious condition he was taken straight to the Hospital. However, he breathed his last on the way. Now the perusal of the statements of the two P.Ws. Would clearly indicate that both of them are consistent on almost each and every material particular with regard to the commission of the murder of the deceased by the two accused.
17. Learned counsel for the appellants, however, objected to placing reliance on the statement of Guldar Ali which was recorded during the proceedings under section 512, Cr.P.C. Because according to the learned counsel, Guldar Ali was not subjected to cross-examination, and therefore, his statement having been recorded in the absence of the accused, could not be relied upon and could not be treated as a supporting or corroborating evidence of the statement of Israr Ali P.W. There can be no doubt or no dispute on the principle that in criminal trials the entire evidence has to be recorded in the presence of the accused. However, under section 512(1), Cr.P.C. a deposition recorded by the Court who is competent to try or send for trial to the Court of Session of any witness may be tendered in evidence against the accused on their arrest during the trial, if a deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. It has come on record and there has been placed no material in rebuttal by the defence that Guldar Ali P.W. Has been done to death during the pendency of the trial according to the prosecution by the accused party and according to the accused, not by them. However, his murder and non---existence is not disputed even by the accused facing trial. Thus, his statement recorded during the proceedings under section 512, Cr.P.C. Under the provisions thereof which by bare reading of the section itself, is admissible in evidence and can be acted upon. In Muhammad Nasir and 7 others appellants v The State respondent 1986 P Cr. L J 1812 it was held that statement of witnesses could be recorded in the absence of the accused and the evidence so recorded in their absence if the witnesses could not be made available, could be treated substantive piece of evidence. It has been proved on record from the prosecution evidence that Guldar Ali P.W. Has since been murdered by the accused party. On the other hand, the accused in their statements under section 342, Cr.P.C. Have denied the murder of the said witness by them or by their party, but have hot disputed the murder of said Gulder Ali. In such a situation the statement of Guldar Ali recorded by the Magistrate of competent jurisdiction who was competent to send for trial the case in hand to the Court of Session, is a valid piece of evidence, substantive in nature. Here it may be mentioned that there can be no dispute over the principle that the burden rests on the State to prove the incapacity of production of the witness whose statement is recorded under section 512, Cr.P.C. And which is treated as evidence against the accused at the trial. The State by producing evidence as discussed above has sufficiently discharged such burden by producing the evidence regarding the murder of Guldar Ali, which has not been questioned by the accused, nor they have produced any material in rebuttal of the prosecution assertion. The contention of the defence counsel that it was a case of a solitary witness who was closely related to the deceased and there being blood feud enmity the statement was riot corroborated, and therefore. It could not be acted upon, holds no water.
18. It is not disputed that Guldar Ali the dead witness, was the father of the deceased and Israr Ali (P.W.4) is the brother-of the deceased. They are thus very closely related to the deceased. It also is not disputed that there was previous blood shed enmity between the deceased party and the accused party. In such a situation they are interested witnesses but it is well-settled principle that deposition of a witness could not be brushed aside on the only allegation of his being an interested witness. It has been consistently held by the superior Courts that an interested witness is as much credible witness as a totally disinterested person. Of course, the evidence of such a witness has been held to be acted upon only when it finds corroboration from other circumstances.
19. According to Israr Ali (P.W.4) and Guldar Ali, the dead witness, the accused fired at the deceased from a close distance. The site plan was prepared at the instance of the said Guldar Ali. According to the site plan, deceased Nazar Ali was sitting on the Charpai at Point No.1 while Israr Ali P.W. Was at Point No.2 and Guldar Ali, the dead witness was at Point No.3. Saiful Malook accused fired at the deceased from Point No.4. This shot is consistently said by the prosecution witnesses to have proved effective. Rasta Baz accused fired from Point No.5 and the prosecution witnesses are not sure whether the shot of Rasta Baz accused proved effective or otherwise. The distance between Points Nos.4 and 1 is 5 single paces. He is alleged to have fired with a .12 bore shotgun. According to the medical evidence, the deceased received a big fir-arm inlet wound with black edges. Five pellets had also been recovered from the wound. There was no exit to the injury caused. The damage caused to the deceased, the recovery of 5 pellets from within the wound and the presence of black edges around the wound, would all support the statement of the two eye- witnesses that the deceased had been fired at from a close distance. According to the prosecution witnesses they had identified the two culprits in the light of the electric bulbs letting in the vicinity.
20. The 1.0. At the time of spot inspection which he inspected immediately after the occurrence recovered one bulb from Point No.6 and the other from Point No.7 of the site plan. If we have a glance at the site plan and the various points indicated therein it fully corroborates the version of the two P.Ws. That there was sufficient light to make the visibility and identification of the two accused much clear. Thus, from the medical evidence as also the site plan, the statements of the two witnesses are fully corroborated.
21. The occurrence took place at Khuftan prayers time and the report was' lodged at 9-55 p.m. In the police station distant about one Kilometre the same night, would further suggest that the report about the incident was lodged immediately after the occurrence and the question of deliberations and consultations regarding the substitution or false implication of the two accused for the actual culprits did not arise at all. According to Israr Ali P.W. At Tappi Oila with the help of co-villagers he put the deceased then in injured condition in a Datsun for medical treatment to the Civil Hospital while his himself went to the police station for lodging the report. From the perusal of the F.I.R. Itself it is clear that while the 1.0. Was busy in recording the F.I.R. He received a message from the Civil Hospital that Nazar Ali deceased had died in the way to the Hospital as a result of the injuries sustained by him. Guldar AIL the dead witness, in his statement recorded during the proceedings under section 512, Cr.P.C. Has confirmed this assertion by saying that when he in the company of other. So --villagers was taking the injured to the Hospital, he breathed his last in the way. Thus the prosecution,, case on almost every material particular is corroborated by the two P.Ws. The medical evidence, the first information report and the site plan.
22. The prosecution case finds further support and corroboration from the abscondence of the two accused who immediately after the occurrence became fugitive from law and while Saiful Malook surrendered after almost two years, I Rasta Baz surrendered after one year and about two months.