' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This appeal is directed against the judgment of a learned Additional Sessions Judge, Haripur dated 8-4-1991, by which he found accused-appellant Shaukat Javaid (24/25) guilty under section 302, P.P.C. For the murder of Maqboolur Rehman (24/25) and sentenced him to imprisonment for life and a fine of Rs,30,000 or in default to undergo further rigorous imprisonment for two years. The entire amount of fine, if realised, was directed to be paid under section 544-A, Cr.P.C. To the heirs of the deceased by way of compensation.
2. According to the prosecution case, the incident occurred on Sain Saheli Road, near Model School, Haripur, at 13-30 hours on the 12th July, 1989. The report Exh. P.A./1, was lodged by Masoodur Rehman (P.W.5) the same afternoon at 15-00 hours in the Civil Hospital, Haripur, who had been taken there in injured condition and in there the former narrated the occurrence as follows:-- "That my brother Maqboolur Rehman is running welding shop in Mohallah Darvesh, Haripur Bazar where I was also present. In the aforesaid Mohallah `Sharbar was being offered. My brother also went ahead wifh a jug to take the drink. Maqboolur Rehman and Shaukat residents of Mohallah Motian, Haripur had grappled with one another on account of distribution of the `Sharbae. I went towards them to effect separation between them but in the meantime Shaukat opened fire with his pistol as a result of which my brother fell to the ground after being hit on his belly. The accused then made good his escape. I lifted my brother and took him to the hospital. The occurrence, apart from me, had been witnessed by Abdul Naeem and Waheed P.Ws. There is no enmity between the parties."
3. Saiful Malook, A.S.I. (P.W.9) then attached to Police Post City, Haripur, on receipt of information regarding the occurrence, reached Civil Hospital, Haripur, where Masoodur Rehman (P.W.5) lodged the report under section 307, P.P.C. Exh. P.A./1. The Investigating, A.S.I. Then prepared the injury sheet Exh. P.W.9/1 and got him medically examined by Dr. Muhammad Tariq Khan (P.W.7) the same afternoon at 1-30. Injury sheet prepared by the doctor is Exh. P.W.7/1. He then set out for the spot and on reaching there he prepared the site plan Exh. P.W.9/3. During the spot inspection Gohar Rehman P.W. Produced to Saiful Malook, A.S.I. a jug cast in aluminum which he secured vide memo.
Exh. P.W.2/1. Muhammad Amin, L.H.C. (P.W.4) produced to Saiful Malook, A.S.I. (P.W.9) blood-stained shirt P-1, Bunyan P 2 bearing corresponding cuts and phial P-3 containing a bullet lead which the latter took into possession and sealed into parcel vide recovery memo. Exh. P.W. 3/1. He also prepared Inquest Report Exh. P.W.7/3 of the deceased and sent the dead body to the mortuary for post-mortem examination. Saiful Malook, A.S.I. Arrested the accused-appellant who while in police custody led the former to the place of occurrence where he prepared the memo. Exh. P.W.9/4. He recorded the statements of the P.Ws. Mir Zaman Khan, S.H.O. (P.W.8) submitted the complete challan against the accused-appellant.
4. In support of its case, the prosecution placed reliance on the ocular evidence of Masoodur Rehman (P.W. 5) and that of Abdul Naeem (P.W.6), the medical evidence furnished by Dr. Muhammad Tariq Khan (P.W.7) who examined Maqboolur Rehman deceased first at 1-30 p.m. On 12-7-1989 in injured condition and then at 2-50 p.m. The same day after the deceased succumbed to his injuries.
5. As regards the death of the Maqboolur Rehman deceased by fire-shots, it has been satisfactorily established by Dr. Muhammad Tariq Khan (P.W.7) who had performed autopsy on the dead body of the deceased and found two fire-arm entry wounds; one just touching the skin above the umbilicus to the left side, of the size of 1/4" skin deep and, another one just below the umbilicus to the right side of the size of 3/4" into urinary deep with distention of abdomen. On internal examination of the deceased, the doctor found spinal cord injured at the level of 4th and 5th lumber vertebrae. Abdominal walls, peritoneum, large and small intestines and bladder were also found injured. The probable time that elapsed between 'injuries' and death was one hour and 20 minutes while that between death and post-mortem examination was 2 hours and 10 minutes. The injuries on the person of the deceased were declared sufficient in the ordinary course of nature to cause his death."
6. When examined under section 342, Cr.P.C. The appellant professed his innocence. When asked as to why the P.Ws. Had deposed against him, he tendered his explanation which is as under:-- "Masoodur Rehman P.W. Is the brother of the deceased, while Abdul Naeem, P.W. Is a domestic servant of Maqboolur Rehman deceased. Both of them have not seen the occurrence. They are sent up witnesses and have deposed falsely on account of relationship with the deceased and at the instigations of my enemies. The independent evidence has been withheld in order to screen the real culprits. The rest of evidence is official and formal."
7. The defence of the appellant which he took in his examination is reflected in the following answer to Question No, 5:-- "Maqboolur Rehman deceased was a man of hypersensitive and volatile nature. He was madly in love with one of the girls living on the roof top of his shop and used to pick up quarrel with every youngster, passing or standing in front of, his shop. About a week prior to the occurrence I was standing-before the shop of Kabli Tandoor Wala (adjacent to the shop of the deceased) and was waiting for baking of my bread when the deceased objected to my presence there and started quarrelling with me. The Tandoor Wala had to intervene in order to rescue me.
3 days later, a few youngsters of the Mohallah were similarly standing before the Tandoor Shop. He abused them saying that they had come after his beloved. There was a big row and in front of the people of the Mohallah he abused those youngsters and insulted them. Since they also belonged to a notorious group of criminals they threatened him with dire consequences and left saying that they will avenge the insult very soon.
' The deceased was in fact a dejected lover. Back in the year, 1982 he had also attempted to commit suicide by firing at himself in the temporal region. He was seriously injured but survived and a case under section 309, P.P.C. Was registered against him vide F.I.R. No,50, dated 28-1-1982 in P.S. Haripur. He was tried for the offence and ultimately convicted.
' On the day of occurrence there was a rumour in the city that Maqboolur Rehman has been killed by some body. When the injured body was located, his brother-in-law was informed at Abbottabad where he runs a shop and resides also. His real brother Masood P.W.5 was then in the T.I.P. Haripur where he works as Supervisor. Both of them came at about 2-15 p.m. And started guessing about the possible culprits. Since they knew about his quarrel with me and at the same time my enemies were available to them to pursuade them, they brought a false charge on suspicion at their instigation. These persons namely Haq Nawaz and Waheed P.Ws. Also became witnesses in the case later on but due to fear of divulgence of their animosity and conspiracy against me they eventually failed to appear as P.Ws. At the trial and the prosecution was forced to abandon them.
' The story of distribution of Sharbat was also cooked up in order to conveniently install the scene of occurrence in front of their shop with a view of supply the witnesses of their own choice. I reside at a distance of about 2 furlongs from the alleged scene of occurrence in the different Mohallah, namely, Mohallah Motian. There was no occasion for me to fix a Sabeel of Sharbat in front of the shop of the deceased in another Mohallah. It is for this reason that the Investigation Officer has frankly admitted in his testimony before the Court that there was no corroboration from the spot or from the factual position that the occurrence had in fact taken place at the alleged scene of occurrence. The prosecution has deliberately shifted the scene of occurrence and also withheld independent evidence to falsely promote their case by close relatives of the deceased. I am innocent and have been falsely charged on account of suspicion and at the instance of my known enemies."
8. Masoodur Rehman (P.W.5) after giving out his relationship with the deceased had stated that on the day of occurrence, at about 1-30 p.m. He was present at the welding shop of the deceased along with Abdul Naeem (P.W. 6) and Haq Nawaz (P.W.), not examined, when `Sharbar was being offered by the appellant for drink. According to him, the deceased approached him for the drink which resulted in exchange of hot words between them on account of which Masoodur Rehman (P.W.) and his companions went ahead "in order to patch up the matter" but in the meantime Shaukat appellant took out pistol and fired two shots at the deceased and decamped from the spot. Almost to the same effect is the evidence of Abdul Naeem P.W.
9. The learned trial Judge believed the version of the prosecution the motive and the medical evidence, furnished by Dr. Muhammad Tariq Khan (P.W.7) and convicted and sentenced the appellant as stated above.
10. Qazi Muhammad Asif, learned counsel for the convict-appellant, reiterated his first argument which he had advanced before the trial Court that the claim of Masoodur Rehman (P.W.5) and Abdul Naeem (P.W.6) to have witnessed the crime at the time and place of occurrence stands belied by a host of circumstances. In this context, it was submitted that evidence on capital charge in this case had not been collected from an unimpeachable source in that the former being the real brother was admittedly resident of village Darwesh and employed as Supervisor in the Telephone Industries of Pakistan at Haripur while the latter in his capacity as the household servant of the deceased could not have been present at the alleged venue and time of the crime. On deeper appraisal of evidence led against the convict-appellant we have, however, not been impressed by the argument. Masoodur Rehman (P.W.5) is no doubt resident of village Darvesh and during the days of occurrence was serving as Supervisor in the Telephone Industries of Pakistan. He was pointedly confronted with this objection in his cross-examination but, according to him and rightly so, he was on leave during those days in connection with his marriage ceremony. The criticism as to why he had not stated so in the report Exh. PA/1 or that he has denied to have done so has no evidentiary value because he was neither asked at that time nor he was required to have mentioned this fact as he was certainly grief-stricken at the time. Besides, the F.I.R. Is supposed to contain a narrative of the way of the incident which has taken place. The matter of such details as to how an informant who was an employee could be present at the time and place of occurrence is not an essential part of F.I.R. Nor omissions to mention such points are in any way derogatory to the weight to be attached thereto. In this respect, reference may be made to Liaqat Ali v. The State (1981 SCMR 1130). We are, therefore, of the considered view that the first informant cannot be condemned on this score alone that he omitted to furnish in the F.I.R. An explanation qua his presence in the F.I.R. Masoodur Rehman (P.W.5) insisted to have been present at the spot at the time of occurrence which, to our mind, is confidence inspiring and that, in any case, in the circumstances of this case, if the stand of the convict-appellant was that he was on duty at the relevant time, he could very well have obtained at least documentary evidence to controvert his stand. It has also not been established that Abdul Naeem (P.W.6) was the household servant of the deceased and that on that basis he could not have been present at the spot. He is insistent that he was serving the deceased as apprentice at the welding shop of the deceased. We have no manner of doubt that his plea is worthy of credence.The testimony of Masoodur Rehman (P.W.5) being the brother of the deceased could not be discarded because of his relationship merely as brother while Abdul Naeem (P.W.6) being his household servant. This relationship per se cannot militate against their credibility. There is no indication on the record that there was any previous enmity between the parties or that these two eye-witnesses had any animus whatsoever particularly against Abdul Naeem (P.W.6) to falsely implicate the convict-appellant. At least Abdul Naeem P.W.
Is the natural witness of the occurrence as he was proved to have been undergoing apprenticeship with the deceased in the field of welding.
11. It was next submitted on behalf of the convict-appellant that there is ample evidence on record in support of the glaring fact that the occurrence had not taken place on the spot specified in the report Exh. PA/1 inasmuch as the Investigating Officer has himself conceded in his testimony 'that factually and by circumstances available on the spot there was no corroboration of the fact that the occurrence had in fact taken place at the alleged place of occurrence.' In support of this contention the failure of the prosecution to recover blood from the spot was pointedly referred to.
In the same context, it was vehemently argued that the margins of the clothes of the deceased received from the hospital were neither bearing the mark of firing nor were stained with blood which had virtually demolished the charge against the convict-appellant. Again with due regard to the learned counsel, we have not been impressed by the above stance taken up on behalf of the convict-appellant. The opinion of the Investigating Officer referred to above was nothing more than friendly concession and is also not borne out from the evidence on the record. During the course of investigation, the aspect of the case had not been adverted to .By the Investigating Officer. It was only in the witness box that he was obliged to make this concession. Similarly we have examined the clothes said to have been worn by the deceased at the time of occurrence. The clothes are freshly washed after which the holes had been made therein which amply speak not for the weakness of the complainant's case but for possible collusion of the Investigating Agency with the convict-appellant in order to help the appellant for any reason which could not be made discernible on the record. In the ordinary course of circumstances, the clothes should have been those of a welder with some stains and not freshly washed. There may be many reasonable hypothesis for friendly concessions made by the Investigating Officer aforesaid as well as of the substitution of clothes which need no elaboration. One reason may be some relationship of the convict-appellant with any Member of the police hierarchy which had obliged him. The evidence of Muhammad Amin, L.N.C. (P.W.4) belles the Contention of the learned counsel for the convict- appellant in this behalf. It was suggested to him in the cross-examination that the clothes brought by him were not blood-stained which was denied and he was positive that the shirt P.1 and Bunyan P.2 were not only blood-stained but were also bearing the holes of firing. Reference may also be made to the statement of Muhammad Sarwar HC (P.W. 3) who had taken into possession the shirt P.1 and Bunyan P. 2 and having corresponding cut marks at two places along with a phial containing a bullet led. The clothes produced before us did not bear the blood stains and the holes caused by firearm. The conclusion, therefore, is irresistible that the clothes had been substituted by the time evidence was recorded. Merely because the blood had not been recovered from the place of occurrence, therefore, the inference that the murder has not taken place on the spot as alleged by the prosecution is not of universal application. There can be exceptions to this phenomenon. In the. Instant case, the murder has taken place in a very congested bazar of the town. The possibility that after the murder the blood had disappeared due to trampling by the throng of people that might have gathered at the venue of the crime cannot be excluded.
12. The non-availability, or disappearance of the blood from the spot on this hypothesis furnishes complete answer to the friendly concessions made by the Investigating Officer and pressed by the convict-appellant. This explanation would be equally valid for the argument that not a single empty has been recovered or no vessel or mug was secured from the spot.
13. It was next contended by the learned counsel for the appellant that the report has been falsely made at 2-20 p.m. And that in any case there is an unexplained delay of more than an hour. After examining the record of the case, we have, however, come to the conclusion that there has been no such delay in lodging the F.I.R. To rub it off its reality. The occurrence had taken place at 13-30 hours whereas the report Ex. P/A was taken down at 14-25 hours. The distance between the place of occurrence and the police station is stated to be one kilometre. On the face of the record and looking to the distance aforesaid, no doubt, there has been a delay of about half an hour.
Nonetheless, Masoodur Rehman (P.W. 5) and Abdul Naeem (P.W. 6) have furnished explanation for the time that was consumed in lodging the report. Reference may be made to the cross- examination of Masoodur Rehman wherein he has maintained that he reached the police station in time where there was only one FC present to whom information of the occurrence was conveyed but the said FC directed him to reach Sadiq Hospital where Saiful Malook, ASI was present in connection with the Jirga. In consequence, he immediately went to Sadiq Hospital and lodged the report. The learned counsel has invited our attention to the admission of Saiful Malook, A.S.I. (P.W.9) who is author of the report Exh.PA/1 that he was present at Panian Chowk which is at a distance of about 200 yards where the report was made to him. In any case, there is no doubt that the Investigating Officer was not present in the police station and after search the report was made to him and the time consumed in lodging the report was plausible.
14. It was then contended that the shopkeepers and other residents of the locality where the occurrence had taken place ought to have been but had not been examined by the prosecution and, therefore, the ocular account of the occurrence furnished by the two P.Ws. Was not worth reliance. This argument is equally fallacious. It is now well-settled that the people do not come up as witnesses in capital offences for fear or reprisal.
15. The answer to question No, 5 in the statement of the appellant recorded under section 342, Cr.P.C. Is in more details than required. One of the assertions of the appellant was that "Maqboolur Rehman deceased was a man of hypersensitive and volatile nature" and was madly in love with one of the girls living on the top of the roof of his shop and used to pick up quarrel with every youngster, passing or standing in front of his shop and that the deceased had also taken cudgels with him while the appellant was standing near the shop of Tandoor Wala for baking up his bread.
According to him, about 3 days later a few youngsters of the Mohallah were standing before the Tandoor Shop when the appellant abused them, resulting in a big row and the possibility was that they might have avenged the insult. From this it follows that the appellant has taken up the plea of substitution. There is not an iota of evidence except few suggestions which had been made by the appellant in the cross-examination of the two eye-witnesses in support of the pleas that have been reproduced above. But, after going through the statement, we have not been able to accept that the alleged group of boys had killed the deceased as this does not sound reasonable either. If any one or more of them had killed the deceased then there was no reason why the appellant had been substituted for them. In any case, the law is settled that in case of a single accused the substitution is a rare phenomenon. The entire stand taken up by the appellant D in answer to question No, 5 reproduced in para. 7 ante has not impressed us. If the appellant was so disposed he could have better examined himself on oath under section 340(2), Cr.P.C. Of the charges or the allegations made against him along with the stance which he had taken up in answer to question No, 5 ante. Having failed to do so no credence can be attached to the said statement.
16. In these circumstances; we are convinced that the appellant has rightly been convicted under section 302, P.P.C. And appropriately sentenced to imprisonment for life/imposition of fine which, on realization, is to be paid to the heirs of the deceased by way of compensation. The appeal having no substance is, therefore, dismissed.