ABDUR REHMAN KHAN, J.---. The appellant has filed this appeal to impugned the legality of the judgment of the learned trial Judge dated 8-6-1991 whereby he was held guilty of double murders, was convicted on two counts under section 302/34, P.P.C. And was sentenced to life imprisonment on each count and also to pay a tine of Rs.20,000 on ,each count or to undergo one year's R.I. For every default. On recovery of fine half of it was ordered to be paid to the heirs of the deceased. The sentences were ordered to run concurrently.
The complainant side has also moved Criminal Revision No.45 of 1991 for enhancement of the sentence into death. We would dispose of both these matters through this single order.
2. The F.I.R. In this case was made by Zarmat Khan, P.W.9, on 15-11-1978 regarding the two murdcrs, out of whom one was his son Khewal Khan and the other was Sahib Jan, a friend of their family. It was stated in this report that on the eventful day the complainant alongwith his brother P.W.10 Gul Baz Khan and P.W. Abdul Sattar (not produced) and the two deceased after taking meals were proceeding to the shrine of Karbogha Sharif. When they reached `Chowk Zarin' there Khewal Khan and Sahib Jan, the deceased, left for the shrine whereas the complainant and P.W. Gul Baz Khan stood by the door of Haji Mir Muhammad. In the meantime, the present appellant and the absconding co-accused Lai Wazir armed with Topaks emerged from the shop of Subedar Zarin and fired 4 shots each at the two deceased and as a result both the deceased fell to the ground and expired on the spot. On hearing the fire-shots the villagers came to the spot and helped them in lifting the deceased from the spot and placing them in separate `Suzukis' in order to take them to the police station. Previous blood fcud was given as motive for the crime.
3. Gul Wazir, the present appellant was arrested on 4-3-1989 while the co-accused is still at large.
4. In order to understand the factual aspect of the case in its correct perspective it will be necessary to give a brief summary of the evidence that was examined by the prosecution at the trial: P.W.1 Farid Hussain, S.H.O., on arrest of the appellant on 4-3-1989 submitted supplementary challan against him.
P.W.2 is the identifier of the dead body of the deceased Khewal Khan.
P.W.3 was during those days F.C. At Police Station Doaba, who was entrusted with the warrants of arrest issued under section 204, Cr.P.C. Against the appellant and the absconding co-accused.
According to his report on Exhs.P.K. And P.K:/1, the appellant was avoiding arrest as he had gone into hiding. Thereafter, proclamation was also given to this witness for execution and he proved his report, Exhs.P.K./2 and P.K./3 over it.
Malik Ghulam Habib being the marginal witness of the recovery memos from Exh. P.D. To Exh.P.D./6, was produced in proof of the said memos. This witness denied the recoveries, covered by the said recovery memos., but admitted his signature over these memos.
P.W.5 had identified the dead body of the deceased Sahib Jan.
P.W.6 is Dr. Abdur Rehman, who had conducted the post-mortem examination on the dead body of the deceased Sahib Jan and had found the following injuries on his external examination:
(1) A fire-arm entrance wound about 2-1/2" above right nipple measuring about 1" x 1".
(2) Fire-arm exit wound on the back of chest right side about 2" below the inferior angle of right scapula about 1-1/2" x 1-1/2" surrounded by four small exit wounds each about 1/4" x 1/4".
(3) A fire-arm entrance wound right axilla medial wall about 3" x 1" (passed along the side of chest wall).
(4) A fire-arm exit wound at the posterior part of right axilla about 1" x 1" surrounded by two small exit wounds each 1/4" x 1/4".
(5) A fire-arm entrance wound with charring marks around the wound at the left lower part of chest about 1/4" x 1/4".
(6) A fire-arm exit wound right lumber region at the back measuring about 1-1/2 x 1".
(7) A fire-arm entrance wound front of right lower chest about 1" lateral to the measuring about 1" x 1/2". Two pellets recovered from the back of lower chest.
Two pellets recovered from the abdomen.
P.W.9 Zarmat Khan, complainant, almost made the same narration of the facts as were given by him in the F.I.R., therefore, there is no need of its repetition. The other eye-witness Gul Baz, appeared as P.W.10 and deposed that on the day the incident occurred the deceased Sahib Jan had come from his village Aman Kot to their house for Eid Greetings and Abdul Sattar P.W., had also come to their house for the same purpose. The deceased Khewal Khan, Zarmat Khan, P.W., and he himself were also present in the house at that time. After taking meals the deceased Sahib Jan expressed his desire to visit the shrine of Karbogha Sharif and he alongwith the complainant, the two deceased and Abdul Sattar started from their house. When they reached the door of the house of Subedar Khair Muhammad, there he and the complainant said farewell to the two deceased. In the meantime they noticed the appellant and the absconder appearing armed with Topaks from the Chowk of Zarin who started firing at both the deceased, who were injured, fell down and died on the spot. It was alleged that each accused fired 4 shots but the fourth shot by the appellant was fired from a close range. On hearing the shots, the villagers were attracted who helped them in lifting the dead bodies and placing them in Suzuki.
The Investigating Officer was examined as P.W.11, who gave details of the various steps taken by him in investigation of the case. According to the deposition of this witness, he was present in the police station when the dead bodies of the two deceased were brought there. He recorded the report of the complainant and prepared the injury-sheet, Exh. P.B. And Exh.P.B./1 of the deceased, and also the inquest report Exh. P.C. And Exh. P.C./l. He then proceeded to the spot where he prepared the site-plan Exh.P.B/2. He also made statement about the various recovery memos and the other steps-which he took in the investigation of the case which need not be recapitulated.
The accused when examined under section 342, Cr.P.C. Pleaded innocence and denied the charges. When he was asked to explain his abscondence, he replied, `I had gone to Karachi before the occurrence, to earn livelihood with my family. The moment it came to my knowledge that I am wanted in this case I surrendered voluntarily to the police'. He, however, denied to give statement on oath in terms of section 340(2), Cr.P.C.
5. The learned counsel arguing for the appellant submitted that out of the two eye-witnesses, one is father while the other is uncle of Khewal Khan, deceased, therefore, their deposition should not have been accepted for holding the appellant guilty. This is too sweeping a proposition and cannot be adopted as a rule of general application. It is now well-settled principle that the evidentiary value of testimony of a witness is to be judged from its intrinsic and inherent value and the mere fact that a witness is related to the deceased would not by itself be sufficient to discard his evidence. Similarly, it is not imperative A to adopt the testimony of a non-related witness for conviction in all events. This distinction is relevant only in respect of the corroboration that would be required for relying on this type of evidence, but stress and. Emphasis on inward evidentiary value would also be there. It was also submitted that it was very is curious and unnatural for the two elderly eye-witnesses to have accompanied the two young deceased to say them farewell.
We, however, do not find anything unique or extraordinary in the conduct of the witnesses to accompany Sahib Jan, deceased, who was a guest of the family, to a certain distance to say good-bye to him. It was next urged that some independent person especially Zarin, from whose Chowk the accused appeared at the time of firing, should have been produced in evidence and their non-production has resulted into grave doubt about the truth of the prosecution case. It is a matter of common knowledge that unfortunately people avoid appearance in evidence although they never fail to exhibit their love and inclination for Islam and their insistence on the adoptability of Islamic values but when it comes to their lot to be a truthful witness of the incident in had seen then they forget everything about Islamic injunctions merely because they fear worldly consequences in case they give evidence. However, Courts would not discard the prosecution case if it otherwise appears credible just because independent witnesses have I~ not supported it.
Moreover in this case, it is not even suggested to the witnesses much less proved that either Zarin or the other occupants of the surrounding premises had seen the occurrence. On the other hand, the prosecution tried to prove that the murders were committed by Zarin and Biland etc. But they were let off after having taken oath as is evident from the following portion of the cross- examination: "It is wrong to suggest that first I charged Zarin, Biland and some other persons of the village but when they satisfied us about their innocence on oath then I charged the present accused."
It was also pointed out that the house of the two eye-witnesses has not been shown near or around the spot in the site plan, therefore, their presence at the spot was doubtful. Nothing substantial turns on this point as this is not the case of the prosecution that the house of the eye- witnesses was situated in close proximity of the scene of occurrence, but instead their version is that they happened to be there in order to say tare well to the deceased Sahib Jan. It was strenuously stressed that the evidence of the complainant revealed that Sahib Jan deceased used to roam about with Speen Gul, an absconder, and the blood recovered from the place where he was shot dead has not been opined by the Chemical Examiner to be human blood, therefore, it was possible that he was done to death in some other place and the place of his murder was maliciously shifted to the scene of crime in this case. It is a far fledged and speculative argument without any basis in the evidence on record. The defence has not been able to lay any foundation for such an argument nor has discre dited the evidence of the prosecution regarding the place of occurrence and the removal of the dead body of Sahib Jan to police station from the spot in this case. The improvement in the statement of the complainant to the effect that the present appellant fired one shot at the deceased from point blank range as against the F.I.R. Wherein it has not teen stated so was much criticised with a view to proving concoction in the prosecution case.
But this argument would not prevail as the number of wounds shown in the inquest report does not tally with that given in the post-mortem report subsequently and if the element of manipulation had been there then such discrepancy would not have occurred. Even otherwise, such a single improvement in the evidence of a witness would not affect the over all evidentiary value of the deposition if it rings true in other particulars to which he has deposed.
6. It was in the end submitted that the incident was reported with unjustified delay as it took place at about 10 a.m. But its report in the police station at a distance of 5 miles was lodged at 12 a.m.
Consumption of this much time in making the report when two persons were shot dead, out of whom one was the son of the reporter and when the informant had naturally first to compose himself and then to arrange for the vehicle for the transport of the dead bodies is not that much excessive or inordinate to render the entire prosecution case doubtful. Moreso, the defence has not been able to show that extra time was spent in deliberation in order to involve the enemies of the family. It was also pointed out that the recovery witness P.W.4 Malik Ghulam Habib has denied the recovery in his presence and, therefore, adverse inference in this respect is to be drawn against the prosecution. This witness has although admitted his signature over the various recovery memos.
But at the same time has denied whatever was taken into possession through these memos. It appears to be concessional statement in favour of defence but in view of the evidence of P.W.11 Aslam, the 1.0., who has effected the recoveries through the said memos. The defence cannot take benefit out of such a faltering statement.
7. We find that the deposition of the eye-witnesses in this se is appealing and forceful which finds support from the medical evidence, the various recoveries from the spot, the site-plan and the abscondence of the C appellant for more than 10 years. We studied the file thoroughly but could not detect anything concrete and substantial to discredit the prosecution case. The learned counsel for the appellant was also unable to point out any other material beside those discussed above to downgrade or injure the credit of the prosecution case. Accordingly, we do not find any merit in this appeal and I dismiss it.
8. The revision for enhancement also merits dismissal as no clear motive for the commission of the offence has been established. Old blood feud has been described as motive for the crime in the F.I.R. As well as in his statement in Court by the complainant but no other supporting evidence, oral or documentary, in shape of F.I.R. Or judgment of a Court has been brought on --record in proof of this fact. On the other hand, the appellant was asked in his examination under section 342, Cr.P.C.
About the previous blood feud but he denied any such enmity. It would be appropriate to reproduce the question and answer from his statement in this respect: `Q. It is in evidence that there was blood feud between you and the complainant party prior to the present occurrence. What do you say about it?
A, There was no enmity with me."
It is thus obvious that the motive in this case is not clear and is shrouded in mystery, therefore, the discretion exercised by the learned trial Judge in matter of sentence does not require any interference and accordingly this revision is also dismissed.