WALI MUHAMMAD KHAN, J.--Through the instant Criminal Appeal No. 85 of 1989 Sultan Muhammad, convict-appellant has called in question the order of the learned Additional Sessions Judge-I, Swabi dated 12-6-1989 whereby he was convicted under section 302/34, P.P.C. For causing the death of Pirdad Khan deceased by firing at him effectively, in furtherance of the common intention with his brothers co-accused namely Haji Muhammad and Wazir Muhammad absconders and sentenced to life imprisonment and a fine of Rs.10,000 or in default of payment of fine to further R.I. For two years and also convicted under section 307/34, P.P.C. For attempting at the life of Hanifdad complainant, alongwith his co-accused (absconders) and in furtherance of their common intention and sentenced to ten years R.I. And a fine of RS.5,ODtl or in default of payment of fine further one year R.I., with the direction that the fine, if recovered, was to be paid to the legal heirs of Pirdad Khan deceased and complainant Hanifdad as compensation. The complainant has also filed Criminal Revision No. 39/89 for the enhancement of the sentences and substantial increase in the fine imposed and the compensation awarded. This single judgment will dispose of both the Criminal Appeal and the Criminal Revision.
2. The brief facts of the case are that on 15-6-1987 at 1600 hours Hanifdad complainant (P.W.5) alongwith his brother--s Faqirdad, Rafiqdad, Sabiqdad and Hakimdad were busy preparing passage over the water channel for the transport of fuel wood through `Rehra' to the tobacco barn when in the meantime Sultan Muhammad convict-appellant alongwith Haji Muhammad and Wazir Muhammad, absconders, came and asked them as to why they were blocking the water channel which led to altercation between them. All the three went to their house and returned with shotguns and fired at the complainant party as a result of which the father of the complainant was hit and died simultaneously and the complainant received injuries on his left side of forehead. No other motive was disclosed in the F.I.R The complainant and the deceased were removed to the Police Station Swabi where Hanifdad complainant, in injured condition, reported the matter to the police, which was recorded by Yar Muhammad Khan, Inspector (P.W.8), vide F.I.R. Exh. P.A. He prepared the injury sheet Exh. P.L. Anti inquest report Exh.P.L./1 of the deceased and sent the dead body to the mortuary for post-mortem examination. He also prepared the injury sheet Exh.P.L./2 of the complainant and referred him to the hospital for medical treatment.
3. The Investigating Officer proceeded to the spot and on reaching there prepared the site plan Exh.
P.B. Correctly with all it foot notes. From the spot he recovered blood-stained earth and sealed the same into parcel vide memo. Exh. P.C. He also picked up two empties of .12 bore shotgun giving smell of fresh discharge and took them into his possession and sealed the same into parcel vide memo. Exh.P.C./1. Wazir Muhammad, F.C. (P.W.1), who had a courted the dead body of the deceased to the mortuary, had been entrusted with shirt Exh.P.1 and shalwar Exh.P.2 both blood-stained and bearing corresponding cut marks, belonging to the deceased, by the doctor alongwith a small sealed bottle Exh.P.3 containing two pellets and he produced the same before the 1.0. Which he took into possession vide memo. Exh.P.C./2. Efforts for the arrest of the convict --appellant and the absconders were made but since they were not traceable., warrants under section 204, Cr.P.C.
Were obtained from the Illaqa Magistrate and were entrusted to D.F.C. Karim Shah (P.W.4) who made a search for them in their village and the surrounding villages but could not succeed in apprehending them and consequently returned the warrants Exh.P.W.4/1 to Exh.P.W.4/3 un served.
This led to the issuance of the proclamation under section 87, Cr.P.C. Which were also entrusted to the same D.F.C. Who has, per his statement in Court, pasted one copy thereof on the outer door of the house of the accused, one copy on the notice board of the Court and returned the third copy of each proclamation Exh.P.W.4/4 to Exh.P.W.4/6 alongwith his compliance report. The 1.0. Sent the blood-stained clothes of the deceased to the Chemical Examiner for chemical analysis and the result Exh. P.K. Is on the file. He also recorded the statements of P.Ws. And submitted complete challan against the accused under section 512, Cr.P.C. In the meantime accused Sultan Muhammad, appellant, was arrested on 19-12-1988 by Anwar Khan, S.H.O. Who submitted supplementary challan against the convict-appellant to the Illaqa Magistrate who sent up the convict-appellant for trial before the Additional Sessions Judge-I; Swabi.
4. Copies under section 265-C, Cr.P.C. Were delivered to the convict-- appellant and a formal charge under section 302/307/34, P.P.C. Was framed against him to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution produced WaAr Muhammad, F.C. (P.W.1), Gul Bahadur (P.W.2), Laiq Shah .(P.W.3), Karim Shah, D.F.C. (P.W.4), Hanifdad (P.W.5), Faqirdad (P.W.6), Dr. Liaqat (P.W.7) and Yar Muhammad Khan, Inspector (P.W.8) and abandoned the remaining P.Ws. Being unnecessary. Of them Hanifdad complainant (P.W.5) is the maker of the F.I.R. While Faqirdad (P.W.6) posed himself to be an eye-witness of the occurrence and the other witnesses are more or less of a formal nature and reference to their statements have already been made in the earlier part of this judgment.
6. Dr. Liaqat (P.W.7) conducted the autopsy on the dead body of the deceased Pirdad Khan, on 16- 6-1987 at 5-30 a.m. And found the following: EXTERNAL EXAMINATION
(1) Two fire-arm injuries on the right side abdomen 1/8" x 1/8".
(2) Two fire-arm entrance wounds on the right aliac crist 1/8" x 1/8".
(3) Two fire-arm entrance wounds on the right lower chest 1/8" x 1/8" each.
(4) Four fire-arm entry wounds on the mid axila 1/8" x 1/8".
(5) Six fire-arm entrance wounds in front of the right side chest 1/8" x 1/8".
(6) 9 fire-arm entrance wounds on the right upper arm.
(7) One fire-arm entrance wound on the right forearm.
(8) Three fire-arm entrance wounds on the left side of the chest 1/8" x 1/8".
(9) One fire-arm entrance wound in the front of the neck 1/8" x 1/8".
(10) Fire-arm entrance wounds on the left thigh 1/8" x 1/8".
INTERNAL EXAMINATION Thorax: Walls, plurea, right and left lungs, heart and vessels injured.
Abdomen Walls, peritoneum, diagram, intestines, liver, injured. The stomach is healthy contained fluid.
The said Medical Officer had also examined Hanifdad complainant on 15-6-1987 at 8-25 p.m. And found the following: Wound in front of the parietal area 1" in size with bleeding. Abrasion on the nose.
The wound was caused by firearm. The medico-legal report Exh. P.M./2 was in his handwriting and correctly signed by him.
7. Accused Sultan Muhammad was examined under section 342, Cr.P.C. And he denied the allegations made against him by the prosecution. He neither appeared as his own witness under section 340(2), Cr.P.C. Nor liked to produce defence. On the appraisal of the evidence and material on record, the learned Additional Sessions Judge-I, Swabi found the convict-appellant guilty under section 302/307/34, P.P.C. And convicted and sentenced him as explained in the introductory part of this judgment. Perpetual warrants of arrest were ordered to be issued against Haji Muhammad and Wazir Muhammad absconders.
8. We have heard learned counsel for the convict-appellant, learned counsel for the State and learned counsel for the complainant and have also perused the record of the case with their assistance.
9. The learned counsel for the convict-appellant vehemently argued that both the eye-witnesses namely Hanifdad (P.W.5) and Faqirdad (P.W.6) being sons of Pirdad Khan deceased, were interested witnesses and reliance could not be placed on their testimony in the absence of any corroboration from independent quarter; that the prosecution version was not corroborated by circumstantial evidence and that the non-recovery of the `Rehra' in which fuel wood were being brought to the tobacco barn and the non-recovery of tobacco leaves from the spot, casts doubt on the veracity of the eye-witnesses; that the 1.0. Failed to mention. In the site plan the putting of the earth in the water channel for making a passage for the use of the `Rehra' and which was allegedly resented by the accused party, disprove the alleged motive advanced by the prosecution; that there was inordinate and unexplained delay in the lodging of the F.I.R. And finally that the medical evidence did not support the prosecution theory. The learned State counsel, on the other hand, controverted all these submissions of the learned counsel for the convict-appellant one by one.
10. We have given our anxious thought to the learned arguments advanced on either side.
According to Dr. Liaqat (P.W.7), Hanifdad complainant (F.W.5) was examined by him on 15-6-1987 at 8-25 p.m. Soon after the occurrence and found a wound in front of the parietal area 1" in size with bleeding and also abrasion on the nose. In his opinion the wound was caused by firearm and on this point he was not cross-examined nor any suggestion was put to him. The Doctor definitely stated under cross-examination that the wound No.1 was not self-- inflicted. Nevertheless the learned counsel for the appellant relying on the Moodi's jurisprudence stressed that according to the opinion of the Medical Officer the wound was still bleeding at the time of his examination of the injured P.W. And that it could only be possible if the injury had been caused to him within about twenty minutes of the examination by the doctor. We are afraid we cannot subscribe to this assertion of the learned counsel firstly, because addition of the word "with bleeding" by the doctor cannot imply that the wound was still bleeding and secondly, because the site of the injury being on the forehead, caused by firearm, cannot by any stretch of imagination be presumed to be self- inflicted or whom a friendly hand. The duration between the time of occurrence and the report which was lodged by the complainant himself is so short that it is well nigh unimaginable that the complainant at the critical time, when his father was murdered, would think of injuring himself to substantiate his presence on the spot at the time of occurrence. We have, therefore, not a shred of doubt in our mind that the complainant Hanifdad (P.W.5) was present on the spot at the time of occurrence and received the injury in the same transaction.
11. The next question which requires consideration is whether Hanifdad complainant has stated truth or not and whether his deposition is materially corroborated by the circumstantial evidence in the case or not. He has charged three brothers namely Sultan Muhammad appellant and Haji Muhammad and Wazir Muhammad absconders for the murder of Pirdad Khan, his father. The doctor found no less than 35 entrance wounds on the person of the deceased and the pictorial Exh.P.M./1 prepared by him shows that all these injuries were caused on the front side of the deceased and apparently are the result of more than one shotgun's shot, some of the pellets having hit the target in a bunch and some of them scattered. These injuries could not be caused if one assailant was firing successively at the deceased but the probability is that more than one assailant armed with shotguns simultaneously fired at the deceased who was an old man and were able to hit him on the front side of his chest. The possibility that the complainant party included innocent with the guilty cannot be imagined in the instant case.
12. The defence has not been able to allege, much less prove, that there was any enmity whatsoever between the complainant party and the accused. They are neighbours and the occurrence prima facie is the outcome of a sudden quarrel over the blockade of the water channel. Firstly, there is nothing on the record to show that the complainant party had any blood feud with any other person who may have taken away the life of the deceased but even if such a theory had been advanced and established even then it would not have cast aspersion on the veracity of the P.Ws. Inasmuch as they could not be expected to level a false charge against the accused party and allow their real enemies to go scot free.
13. Admittedly there is some delay in the lodging of the F.I.R. But the same is of no help to the defence because there is no enmity between the parties. The occurrence took place in a broad daylight and the report had also been lodged before sunset and, as already explained above, the presence of the complainant on the spot at the time of occurrence on account of the stamp of injury on his person cannot be doubted. As regard the contention of the learned counsel for the appellant that the `Rehra' and tobacco leaves were not taken into possession by Investigating Officer or the absence of a note in the site plan regarding the blockade of the water channel through the filling of earth therein are matters which may point to the inefficiency of the Investigating Officer but cannot create any doubt about the veracity of the eye-witnesses particularly when Hanifdad injured P.W., on whom much reliance was placed by the learned trial Judge, was neither present at the time of spot inspection nor the site plan was prepared at his instance, as at the relevant time he is presumed to be in the hospital. Moreover, site plan is not a substantive piece of evidence as held in PLD 1976 SC 234 and PLD 1982 Pesh.
14. Last but not the least important is the abscondence of the appellant which was not satisfactorily explained by him when he was questioned about it in his statement under section 342, Cr.P.C. No doubt abscondence per se cannot be considered proof of guilt of the accused person but is a strong piece of corroborative evidence and in the instant case the long absence of the appellant from his usual abode can lead to the only conclusion that he was rightly charged for the murder of the deceased.
15. The upshot of the above discussion is that we do not find any legal or factual error in the conclusions arrived at by the learned trial Judge. We accordingly maintain his impugned order of conviction and sentence passed against the convict-appellant.
16. Since the occurrence was the result of a sudden quarrel between the sons of deceased and the convict-appellant and there was no premeditation and preplanning, the learned trial Judge has rightly exercised his discretion in f awarding the lesser penalty provided under the law and we are not inclined to interfere with the same in the exercise of our revisional jurisdiction.
17. Resultantly the instant appeal (Criminal Appeal No. 85 of 1989) and the connected Criminal Revision No. 39 of 1989 both are dismissed.