' QAZI MUHAMMAD FAROOQ, J. --- The appellant Zarif Khan, aged about 55 years, was tried by the learned Sessions Judge, D.I. Khan for committing the murder of one Muhammad Bakhsh, father of his son-in-law, and making murderous assault on his son-in-law Gul Zaman alias Gulla. At the end of the trial he was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs,5,000 or six months' R.I. In default. He was further convicted under section 337-F(v), P.P.C. And sentenced to five years' R.I. And ordered to pay Daman amounting to Rs,5,000 to Gul Zaman. The convict has come up in appeal to this Court and the usual reference for the confirmation of the sentence of death is also before us. Both the matters shall be dealt with and disposed of by this judgment.
2. The occurrence is said to have taken place on 6-10-1991 at about 10-00 a.m., in the house of the complainant Gul Zaman, situated in village Garrah Hayat at a distance of about 5/6 kilometres from the Police Station Tank. The F.I.R. Was lodged by the son-in-law of the appellant in the Emergency Ward of the Civil Hospital, Tank at 11-15 a.m. And it was recorded by Hag Nawaz Khan, A.S.I. (P.W.13).
3. The facts of the prosecution case in brief are that on the eventful day while the complainant was present in his house alongwith his wife Mst. Gul Sherina and father Muhammad Bakhsh the appellant, armed with an S.B. Shotgun, came there along with his wife Mst. Malala and daughter Mst. Nikki Gulli and asked the complainant's wife to come out and accompany him. The complainant's wife declined on which the complainant asked the appellant to desist from taking her away forcibly as she was not willing to accompany him. The appellant in turn fired at the complainant injuring his right arm. The complainant's father came forward to intercede on which the appellant fired at him effectively. The appellant fired a third shot also which went amiss and thereafter he disappeared along with his wife and daughter.
4. The deceased in an injured condition was taken to the Civil Hospital, Tank where at about 11-30 a.m. He was medically examined by Doctor Aurangzeb (P.W.9) who found the following injury on his person:- "An entry wound of fire-arm on the mid of sternum 2-1/2" from xiphisternal lower margin at, the level of 5th rib. Exit wound is not present. Tatooing marks present around the entry wound."
' Probable duration of injury was within six hours.
' The complainant was also examined by the same doctor on the same day and the following injury was found on his person:- "An entry wound of fire-arm present on the upper lateral part of forearm. Pellet of the same entry would present beneath the skin in the lower lateral part of right upper arm. Charring marks present around the margin of entry wound."
' Probable duration of injury was within six hours.
5. The deceased expired in the Lady Reading Hospital, Peshawar on 13-10-1991 and autopsy on his dead body was conducted at 2-30 p.m. By Doctor S. Nasir Ali (P.W.6) who found the following:-- ' EXTERNAL EXAMINATION: ' An old man with white beard. Rigor mortis started and post-mortem staining present. There are two stitched surgical wounds on the left side of chest side by side. There is one fire-arm entry wound stitched, on the joint of chest in midline, 5 x 1 c.m. Size, 8 c.m. Below the jugular notch.
' INTERNAL EXAMINATION: ' Thorax: Walls, ribs and cartilages left side pleurae, left lung and pericardium injured.
' Abdomen: Stomach healthy and empty.
' In his opinion, the cause of death was injury to the left lung and pericardium caused by fire-arm. A metallic piece, extracted from the dead body was handed over to the police.
6. On the very day of occurrence the appellant was arrested from his house by the Investigating Officer, Haqnawaz Khan, A.S.I. (P.W.13), and during the ensuing search of the house an unlicensed S.B shotgun bearing No,18160 and two live cartridges were recovered which were made into a sealed parcel vide memo. Eh PE and sent to the Ballistics Expert along with two crime empties which were recovered from the spot, vide memo. Exh.PD. The Ballistics Expert opined that both the crime empties were fired from .12 bore S.B. Shotgun No, 18160.
7. At the trial the prosecution examined thirteen witnesses in all including Dr. Nasir Ali (P.W.6) and Doctor Aurangzeb (P.W.9). Of the remaining witnesses while Gui Zaman (P.W.10) and his cousin Falak Sher (P.W.11) and uncle Khuda Bakhsh (P.W.12) furnished ocular evidence, Noor Wali Shah, A.S.I.
(P.W.1), who had prepared the inquest report of the deceased, Ghulam All (P.W.2), who had signed the recovery memos. In regard to the crime empties and the shotgun as a marginal witness, Hazrat Bilal (P.W.3), who had brought from the hospital a phial containing a pellet,. Ghulam Farid L.H.C.
(P.W.4), recovery witness of the sealed phial, Rehmatullah Khan, A.S.I. (P.W.5) and Idrees Khan, S.H.O.
(P.W.7), who both had investigated the case partly, gave evidence of formal nature. Haqnawaz Khan, A.S.I. (P.W.13) deposed about the manner in which he had conducted the investigation.
Furnishing details he stated that he had recorded the Murasila Exh.PA/1 in the Civil Hospital, Tank and prepared the injury sheet Exh.P.M./3 of the complainant and injury sheet Exh.P.M./4 of the deceased. Thereafter, he had proceeded to the spot and on reaching there had taken into possession two empties of .12 bore smelling of freshly discharged gun powder and made the same into a sealed parcel vide memo. Exh.P.D. He had also searched the house of the appellant and recovered an unlicensed shotgun No,18160 and made the same into a sealed parcel vide memo.
Exh.P.E. And arrested the appellant. He had also prepared the site plan Exh.P.B. And recorded the statement of the P.Ws. And sent the incriminating articles to the Ballistics Expert.
8. The appellant when examined at the trial denied his guilt and professed innocence. His plea was one of complete denial of the occurrence and false implication.
9. After hearing the learned counsel for the appellant and the learned Assistant Advocate-General at length and scrutinizing the prosecution evidence very closely we are convinced that Falak Sher (P.W.11) and Khuda Bakhsh (P.W.12) had not witnessed the occurrence and had reached the spot after the dust had settled down. Their testimony is relevant to this extent only that it proves the presence of the appellant on the spot of occurrence duly armed with a shotgun. However, the complainant Gul Zaman (P.W.10) is one of the inmates of the house where the occurrence had taken place and is also carrying the stamp of a fire-arm injury on his person, therefore, it is not possible to doubt his presence on the spot at the time of occurrence. He has given a simple and straightforward account of the occurrence and there is nothing in his 'cross-examination to suggest even remotely that he had compromised his integrity and implicated the appellant in the case by fabricating a false story and suppressing the real facts. No doubt he is more closely related to the deceased but this feature of the case cannot be blown out of proportion so as to tarnish his veracity as there is no background of enmity between him and the appellant and in any event his testimony is fully corroborated by the positive report of the Ballistics Expert which indeed has come from an independent source and does not suffer from any infirmity. Besides, it goes without saying that it being a case of single accused substitution of an innocent person for the real murderer is highly improbable. The prosecution case against the appellant undoubtedly stands proved beyond any reasonable doubt.
10. The prosecution case was subjected to scathing criticism by the learned counsel for the appellant. He argued at the outset that the venue of occurrence was doubtful for want of recovery of blood from the spot. He further argued that according to the recovery witness Ghulam Ali (P.W.2) the pellets. And the empties were recovered from inside the complainant's house, therefore, on the one hand the statement of the complainant that the appellant had fired at them from outside the house was false and on the other observation of the Investigating Officer reflected in the site plan that the empties were recovered from outside the complainant's house was incorrect and should be kept out of consideration. It was further urged that the ocular evidence was in conflict with the medical evidence in that according to the ocular evidence the deceased and the complainant were fired at by the appellant from a distance of about eighteen paces but according to their medico-legal reports there were tattooing marks on the injury sustained by the deceased and charring marks on the injury suffered by the complainant which suggested that they were fired at from a very close range. It was further contended that the complainant's wife Mst. Gul Sherina was a vital eye-witness but was abandoned as being unnecessary, therefore, adverse inference should be drawn against the prosecution.
11. The contentions raised by the learned counsel for the appellant have not impressed us. It is true that no blood was recovered from the spot but this circumstance cannot be stretched to the extent of destroying the prosecution case as in view of the nature and location of the injuries sustained by the deceased and the complainant the possibility that the blood was absorbed in their clothes cannot be ruled out particularly when the Investigating Officer after observing their clothes had recorded a similar opinion in the site plan. The conflict between the ocular and the medical evidence is more fabricated than real. The remarks about tattooing and charring contained in the medico-legal reports of the deceased and the complainant smack of some kind of indulgence because had the same been above board the reports would not have been altogether silent about the condition of the clothes of the victims. Besides, the entrance wounds sustained by the deceased and the complainant had no exit wounds and a single pellet was extracted from the dead body during the post-mortem examination and similarly a single pellet was found stuck in the complainant's arm under the skin. Had the deceased and the complainant been fired at from a close range the pellets would have entered their bodies in a bunch causing exit wounds and if exit wounds had not been caused the number of pellets extracted from the dead body and detected under the skin of the complainant's arm would have been more than one. Moreover, the absence of the over-shot card wads also suggests that the shots were not fired from a close range. The remarks about tattooing and charring are thus palpably incorrect and as such- the opinion of the doctor does not command respect. Needless to mention that it is now well-settled that the medical opinion is not conclusive and inviolable and must be invariably tested on the touchstone of the well-known treatises on Medical Jurisprudence and Fire-arms.
12. Coming to the statement of the recovery witness Ghulam Ali (P.W.2) that the empties were recovered from inside the complainant's house we find that according to the site plan two crime empties were recovered from outside the complainant's house and three pellets were recovered from inside the house. The contention that the statement of the recovery witness had an edge over the testimony of the complainant as also the site plan cannot prevail because firstly; his statement has overtones of an obliging concession, secondly the house of the complainant has no boundary wall as admitted by the recovery witness and thirdly; the site plan contains a specific note of the Investigating Officer that the crime empties were recovered from outside the house of the appellant and no bias has been established against him. It is true that the site plan is not a substantive piece of evidence but it definitely has evidentiary value in respect of those matters which are the result of the observation of the Investigating Officer and are not entered therein at the instance of the eyewitnesses. The site plan consists of two portions, one prepared by the Investigating Officer on the pointation of the eye-witnesses which is reproduction of their statements recorded under section 161, Cr.P.C. And the other based on the observation of the Investigating Officer. The second portion is decidedly a substantive piece of evidence and in this context it will be advantageous to refer to an authority from the Indian jurisdiction reported as Tori Singh and another v. State of Uttar Pradesh (AIR 1962 SC 399) wherein it was observed that the sketch map would be admissible so far as it indicates what the Investigating Officer saw himself at the spot but any mark put on the sketch map based on the statements made by the witnesses to the Investigating Officer would be inadmissible in view of the clear provisions of section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during the investigation.
13. The name of the complainant's wife Mst. Gul Sherina, who happens to be the daughter of the appellant, is indeed mentioned in the F.I.R. But no adverse inference can be drawn from her non- production at the trial because her production as an eye-witness was quite risky for reasons which are too obvious to need elucidation. The prosecution is neither obliged to examine all the eye- witnesses nor is debarred from abandoning an eye-witness about whom D it has apprehension that he has been won over or might take a somersault at the trial on account of relationship with the accused.
14. As to sentence, the appellant definitely deserves leniency because this possibility cannot be ruled out that something provocating might have been said to him by the complainant when he had asked his daughter to accompany him. If he really intended to kill the deceased and attempt at the life of the complainant he would have come to their house alone and would not have brought with him his wife and minor daughter Mst. Nikki Gull. The normal sentence for murder namely death is, therefore, not warranted and the ends of justice shall be adequately met if the sentence of imprisonment for life is substituted for the sentences of death.
' Resultantly, this criminal appeal is partly accepted and while the conviction of the appellant Zarif Khan under section 302, P.P.C. As well as section 337-F(v), P.P.C. Is maintained the sentence of death awarded to him by the learned trial Court is altered to imprisonment for life. The sentence of fine of Rs,5,000 is also maintained and in default of payment of fine the appellant shall suffer further six months' R.I. Fine if recovered shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The sentence of five years' R.I. Under section 337(v), P.P.C. Is also on the higher side. It is reduced to two years' R.I. And the amount of Daman of Rs,5,000 is also reduced to Rs,2,000 which on recovery will be paid to the complainant Gul Zaman. All the sentences awarded to the appellant shall run concurrently. The benefit of section 382-B, Cr.P.C. Is also extended to the appellant in the computation of the period of his imprisonment. The sentence of death awarded to the appellant is not confirmed and the murder reference is answered in the negative.