' SARDAR MUHAMMAD RAZA, J.--- Faizullah son of Sher Jan of Village Rehmani Khel, Dera Ismail Khan has challenged his conviction under section 302/34, P.P.C. Recorded by the learned Sessions Judge, Dera Ismail Khan on 14-7-1992 whereby the appellant was sentenced to imprisonment for life and a fine of Rs,20,000 etc. Etc. Connected therewith is a Criminal Revision No,7 of 1992 filed by Mst.
Sakeena the complainant in the case and also wife of Muhammad Ali deceased, who seeks the enhancement of sentence through the awarding of normal penalty of death.
2. Brief background of the case is that the deceased Muhammad Ali and the accused-appellant Faizullah, were nephew and uncle respectively. On 20-1-1990 at morning sunrise time Muhammad All deceased went out from his Kotha towards the courtyard when Faizullah appellant alongwith his two sons Shaukatullah and Javed (the absconders), who were present armed beside the wall of the house, opened fire at Muhammad Ali with which he got hit and fell injured. His wife Mst.
Sakeena, the complainant, rushed towards him whereupon Faizullah convict-appellant came near to the injured Muhammad All and fired another shot with which too the injured got hit. There was no previous enmity between the parties, anyhow, the deceased Muhammad All who was serving in the Army had come on leave and was demanding his share of inheritance in the joint property which his paternal-uncle Faizullah accused-appellant persistently refused.
3. When the occurrence was in progress, Rehmatullah the brother of the complainant also reached the spot. About him the complainant Mst. Sakeena says that he (Rehmatullah) might have witnessed the occurrence. The injured was taken to the Police Station Paniala accompanied by the complainant as well, where the lady lodged report as above before Ashraf Zaman, S.H.O. Who recorded it at Serial No,10, prepared the injury sheet Exh.P.W.10/1 and sent the injured to the Hospital at Paniala. The doctor at Civil Hospital Paniala considered the condition of the injured to be serious and referred him to District Headquarter Hospital, Dera Ismail Khan which is 64 kilometres away therefrom. On reaching D.I. Khan the injured Muhammad All succumbed to his injuries and the dead body was again sent to Paniala for post-mortem examination. After lodging the report Mst.
Sakeena had gone back to the village alongwith the S.H.O./I.O. Who at her instance prepared the site plan which is Exh.P.W.10/2 on file. All the three accused had gone into abscondence. Faizullah appellant was arrested on 11-9-1990 while his two sons namely Shaukatullah and Javed are still absconding. When at trial, the appellant pleaded not guilty.
4. The prosecution has relied upon the ocular testimony of Mst. Sakeena and her brother P.W.
Rehmatullah. Support is sought from the circumstance that the occurrence having taken place in the house of the complainant, she was a natural witness to the occurrence and hence her statement could be taken as true and without corroboration which, according to prosecution, was also sufficiently available. Motive is claimed to be one of such circumstances in addition to the medical report/post-mortem examination, the recoveries of empties, spent bullets, cardboards etc. From the spot and unexplained abscondence of the appellant for almost eight months while his two sons were still absconding. How far the prosecution has succeeded in bringing home guilt to the doorsteps of the accused beyond any shadow of reasonable doubt, is now the taxing job of the Court which, in the circumstances of the present case, has become more intricate and delicate.
5. As a peculiar feature of the present case and to examine the evidence in its true perspective, it would be necessary almost all the time to keep the site plan Exh.P.W.10/2 in view. Whom the prosecution calls a natural witness, is at the same time, being the wife of the deceased, is a highly interested witness and hence I believe that at least some corroboration is required so as to satisfy the judicial mind of a Court regarding her being a truthful witness. An oft-repeated and almost universal is a truth that men may lie but the circumstances do not. As the complainant in the instant case being the wife of the deceased is a highly interested witness and as the occurrence has taken place within the four walls of the house of the complainant ousting almost all possibilities of other eye-witnesses, therefore, it would be the earnest requirement of ordinary prudence to appreciate her statement and that of her brother Rehmatullah in close relevance to the unavoidable circumstances. The job in the instant case is rather difficult but that is what a Cowl is meant for.
6. Reverting to the site plan, the deceased is present at point No,1 when he was for the first time fired at by the three assailants, which fire went amiss. From point No,1 Muhammad Ali deceased rushed towards his Kotha when he was again fired at when he reached point No,1-A. His path from point No,1 towards the Kotha is indicated by arrow marks being the shortest and as the distance would suggest, he would have covered this distance in uninjured condition in about two seconds when he got hit at point No,1-A. In about 5 to 6 seconds more Faizullah accused jumped inside the courtyard, went near to the injured and from point 2-B he fired another shot which hit the deceased at the tip of the shoulder making an exit at the back the missile through which pierced into the ground wherefrom the Investigating Officer had recovered it. All this would have happened, as per natural sequence of the occurrence, in not more than ten seconds but P.W. Rehmatullah was so quick to reach there that the last shot by Faizullah was practically witnessed by him. It is noteworthy as to how at all by hearing the report of the fireshots he came to an instant conclusion that the trouble must have arisen in the house of his sister so that he should rush to the place from the lowest of southern most spot in the site plan to the place of the occurrence which is inside the house. It is also not believable that Faizullah who is so desperate that he kills his own nephew would spare Rehmatullah, the intruder, to appear subsequently as eye-witness in the case. I hold at the outset that Rehmatullah P.W. Was not at all an eyewitness to the occurrence and that is why, in the very F.I.R. His real sister was not sure about him. His presence was mentioned in the F.I.R. In such a manner so as to leave a good range of margin to for. Manipulation on the one hand and also to give a feeling as to how truthful the complainant is. It is not the only reason for which I exclude Rehmatullah but there are many other discrepancies which would be referred at the relevant places from time to time.
7. Eliminating Rehmatullah from being an eye-witness, I happened to cultivate serious doubts about the, conduct of the prosecution which has produced him as one. This provides an occasion to be all the more conscious about the only eye-witness Mst. Sakeena. The F.I.R. Is a mixture of generalised statements so that those be improved upon and explained in a manner suited to the prosecution. This also would be referred to from time to time. The first to be mentioned in this behalf is that the purpose of the deceased of going out, is kept dubious in the F.I.R. By merely stating that he went out towards the courtyard. As there was no reason for being out of Kotha in that early and chilly morning, therefore, it was improved upon during Court statement that the deceased went out to ease himself but normally people do not ease themselves within a courtyard and it was said at times that he sat at point No,1 to urinate. It is admitted by Mst. Sakeena that at the time of first volley of fire shots, she was sitting inside the Kotha in front of the hearth. If this was so, it is not as to how she saw the three assailants at points Nos.2, 3 and 4 in the site plan. By the time he got hit by the fire originating from points Nos.2-A. 3-A and 4-A, the complainant had come out and had taken the injured in her lap with which her clothes had become blood-smeared. These were shown to the police as well but the Investigating Officer was quite unintelligent not to have taken such clothes into possession. P.W. Rehmatullah never mentioned about his sister having ever taken the deceased into her lap. From her Kotha she came out at point No,5 whereas she should never have gone beyond point No,1-A where her husband had fallen and where Faizullah had come to, merely to fire a last shot at the deceased so that the matter is finished. It is again highly unbelievable that Faizullah accused would jump from the wall, would get closer to the deceased in order to finish his enemy, would fire a shot from a close range and would still choose only the tip of a shoulder to be the desired target. He could very well have shot on the chest, heart and brain, which are always more fatal a target than a tip of a shoulder. It appears to be a marvel of investigation and all the manipulations were done only to support an injury that otherwise appears to have been caused from close range. It was only for this reason that the story of jumping down the wall and firing from a close range was introduced for the first time at trial with no reference at all in the F.I.R., in specific detail.
8. The very first version that the deceased was fired at when he sat to urinate at point No,1 is not true because, given the short distance and the three desperate persons attacking a cousin and a nephew, only a blind man would miss in such a triple alliance. Point No,1 at the site plan was only introduced as against points Nos.2, 3 and 4 of the accused so that some bullet/pellet marks on a shoulder at point No,B and in the background at "C" and "D" are justified. Some depressed lead bullets were recovered from "C" and "D". If the assailants were bent upon killing the deceased Muhammad Ali they could have very well done it from points Nos.2, 3 and 4. Even if they had missed once (which I do not believe), they could shift the aim at the running deceased without wasting a time in shifting to points Nos.2-A, 3-A and 4-A. This lengthy exercise seems to be another mala fide of the investigation which is done only to justify the recoveries and also the alleged presence of Mst. Sakeena.
9. The deceased is hit at point No,1-A at a time when three assailants are at points Nos.2-A, 3-A and 4-A who are hardly six paces away from the deceased. The three assailants sufficiently armed at a distance of only six paces could easily blow the deceased into pieces but still Faizullah the oldest of all behaved like a chip, scaled over the wall and went inside the house of the deceased to give him a fatal shot which, as per location thereof, was not fatal either as compared to the already caused injuries which were on the head. Such immature and dangerous attitude would have been shown by his younger sons and not by an old man like the appellant. The entire effort seems to have been done to justify the recoveries from points Nos.H, K and P.
10. The medical report, as alleged by the prosecution and also accepted by the learned Sessions Judge, does not go to prove the case of the prosecution. One injury, as seen in the skiagram, is so close to the other that it is totally impossible that the victim would have remained still until he received the other and still another and that too within the radius of about 3 to 4 inches. The very first impression that one gets from having a look at the skiagram is that it was one fire shot preferably from a shotgun with larger pellets that proved fatal. The recovery of spent pellets of .303 bore from the earth has confused the Investigating Officer who could despite his best efforts bring about reconciliation in the so-called ocular testimony and the circumstances. A general time of occurrence like "Tuloo-e-Aftab Vela" is purposely written in the F.I.R. So as to keep a safe margin.
11. It is admitted by Mst. Sakeena that her mother-in-law Mst. Banuchai who has now married another uncle named Ayaz of the deceased, owned a Kotha in the same house. The accused in his statement has alleged that Mst. Banuchai and her husband Ayaz also lived in the same house and this entire trouble is created by Ayaz. In this background when it was suggested to Mst. Sakeena if Ayaz and Mst. Banuchai were also present in the crime house at the time of occurrence, she negated the suggestion but at the same time the said Ayaz who was a prosecution witness was abandoned by the prosecution. The possibility cannot be ruled out that Mst. Banuchai and her husband Ayaz, another uncle of the deceased were also present at the time of occurrence and Ayaz is abandoned only because the prosecution was afraid of the consequences that might ensue. It may be pointed out at this juncture that said Ayaz, the brother of the accused was neither a common witness to the recoveries on record nor a witness in Column No,4 of the inquest report nor the one who identified the dead body at the time of post-mortem examination and hence there was no justification for him to have been abandoned. What conclusion I want to draw step by step is that either Mst. Sakeena despite being in the house had not seen the occurrence that took place outside the Kotha in the early hours of the morning or she is deliberately suppressing the real facts in putting the occurrence in a manner other than the one in which it took place. The benefit of all these discrepancies is bound to go to the accused.
12. What I have arrived at, is not mere conjecture or surmise but is sum total of all negations made by circumstances. I now attend to one circumstance whereby the presence of Mst. Sakeena or her witnessing of the occurrence is altogether excluded by her own statement-in-chief when she says uninterrupted that she alongwith others took her deceased husband to the police station for making the report, who, succumbed to his injuries on his way to the police station. This is such a blunder in her statement that knocks at the very root of the prosecution case. It is an undisputed fact that the injured Muhammad Ali died at D.1. Khan as per endorsement made by the doctor at 10-30 a.m. And was fully alive at the time when he was being taken to the police station. If the wife says with utmost certainty that her husband died on his way to the police station, it clearly indicates that she was not accompanying the injured. Obviously, she was not accompanying because she had not witnessed the occurrence, had not taken her husband into her lap and her clothes were never blood smeared and that is why were never taken into possession by the police.
Rehmatullah only alleged that his sister had given support to her husband. It is not known as to when it so happened and when the facts narrated by the lady did not happen. The prosecution has throughout suppressed the material facts from the Court under the expectation that the deposition of the lady would be taken for granted despite the fact that she has created a yawning gap and void in the story of the prosecution.
13. While running away accused Faizullah left no footprints or scratch marks on the wall because according to the Investigating Officer, it was made of stones whereas according to Rehmatullah, the close relative of the deceased, the intervening wall was Katcha and made of mud. One of them has not seen the wall at all and that one could be the Investigating Officer because Rehmatullah being the closest of the relatives cannot be excluded. The site plan should have been prepared at the instance of Mst. Sakeena but Rehmatullah says that it was prepared at his instance in spite of the fact that at the admitted time of preparation of site plan, Rehmatullah was with the injured or the dead, at the Hospital. If we exclude his presence as well as the presence of Mst. Sakeena at the time of preparation of site plan, we are left only with the Investigating Officer who certainly has prepared the site plan with his own maneouvring by fitting in Mst. Sakeena as eye-witness. All these discrepancies and utter negation by circumstances lead me to hold that Mst. Sakeena has not witnessed the occurrence and thus has put forth the occurrence in a manner in which it did not take place. Both ways, the case of the prosecution is rendered highly doubtful.
14. Coming to the motive, it is distinctly relied upon to the effect that the deceased wanted the share of his inheritance in the joint property. So far as the landed property is concerned, not a single paper from Revenue Record is placed on file to prove that there was any possibility of their having a joint property. No oral evidence was even examined to prove that they owned a joint property which was never partitioned. So for as the residential property is concerned, the very site plan shows that the parties had separate and independent houses and the one in which the occurrence took place was the house of Muhammad Ali deceased. It is admitted by Mst. Sakeena that one Kotha in the said house is even today owned by Mst. Banuchai who is the mother of the deceased and who has contracted marriage with another uncle of the deceased. The ownership of the mother would rather suggest that she stands given her share in the property of her husband. It is not known as to how the deceased remained deprived. The prosecution has, therefore, not proved the motive which rather boomerangs at it. The learned Sessions Judge was quite unjustified to state here that the accused has not been able to properly answer some suggestions to that effect. No accused can be bound down for not properly answering some suggestions or for not making some proper suggestion until and unless it is either some admission or some grave contradiction occurring within the statement.
15. Even if one considers the alleged one to be a motive between the parties which the prosecution has not proved yet the resort to killing would be justified if made by the deceased, rather the other way round because the accused uncle could refuse partition without resorting to killing. On the one hand the motive is not plausible, on the other hand, once again I would say, that the real manner of the occurrence is suppressed. One may remind that according to P.W. Rehmatullah even Ayaz has also received his share in the property. It is probably this fear under which P.W. Ayaz was abandoned.
16. There are other recoveries from the spot as well but it is not proved that the empties found on the spot were ejected under all circumstances by the gun of the accused-appellant.
17. Coming to the judgment of the learned Sessions Judge, his reasoning for coming to the conclusion that he arrived at, was not judicial. He was impressed by the fact that Mst. Sakeena being the inmate of the house was a natural witness to the occurrence is not a gospel truth for all times. Being natural witnesses, people sometimes tell lies and this by itself is no proof of the fact that the witness is telling the truth. As already remarked by me somewhere in the earlier portion of the judgment, no doubt Mst. Sakeena was the resident of that house where the occurrence took place but it is not necessary that in that early hours of the morning she must have witnessed all that occurred on the spot. May be she was inside the Kotha. May be she was asleep and may be she is seriously twisting the material facts in order to suppress the part that her husband played and that is why the real manner of the occurrence seems to be altogether different. The reasoning of the learned trial Judge at page 6 of his original judgment that by not cross-examining Mst.
Sakeena qua the presence of Rehmatullah, the defence "in a way" has admitted P.W. Rehmatullah to be an eye-witness, is utterly devoid of judicial norms of appreciation of evidence. It was also the duty of the trial Court to have looked into the intrinsic value of the statement of Rehmatullah and not to have damaged the defence "in a way". The learned trial Judge was also wrong in concluding that why Mst. Sakeena and P.W. Rehmatullah would charge the accused falsely and let the actual culprits go scot free. Such type of argument is attracted only in case of a single charge and that too under extremely limited circumstances. Even otherwise the conclusion is based on presumption that P.W. Rehmatullah was present on the spot whereas, the very presence of Mst.
Sakeena is doubtful. The learned trial Judge has again wrongly concluded that the medical evidence supports the case of the prosecution. As discussed by me, all the injuries on the face can be caused by single fireshot and hence it rather negates the prosecution story. Moreover, the injuries are not to be distributed among the assailants as if the cartridge is used, it can cause scores of injuries with only one finger at the trigger. The trial Judge says that injuries Nos.4 and 6 are not possible with one fire shot, as per doctors' opinion but at the same time three persons attempting twice and one of them thrice would also not cause the small number of injuries like those caused to the deceased, rather, their missing the target at the first instance is impossible. I have already disagreed with the trial Court when it considers to motive as proved simply because the explanation offered by the accused in his statement was not plausible. The prosecution is bound to prove its own case despite the implausibility and unreasonableness of the defence. I The learned trial Judge himself seems to be not convinced and satisfied of the prosecution evidence and thus avoided the normal penalty on another wrong pretext that it was not known as to what had actually happened immediately before the occurrence. Exactly this was the situation which can be put another way by saying that the occurrence has not taken place in the manner in which it is put forth by the prosecution. In view of the previous motive the assailants allegedly had fired at the deceased. In these circumstances when the fire is opened from behind the wall or from an ambush, there is no occasion for the parties to enter into a dialogue so that one should seek for the fact as to what actually happened immediately before the occurrence. Such factors are sought only when there is some quarrel between the parties on the spot and when some dialogue takes place before the occurrence. If any such thing has happened in the instant case, it is suppressed by the prosecution who has concealed the manner in which the occurrence really took place.
18. Although the circumstances are not exactly similar but the Supreme Court in Ashiq Hussain v.
The State 1993 SCMR 417 has laid down a principle that if defence has failed to substantiate any plea, this by itself does not improve the case of the prosecution and the benefit is still to be extended J to the accused. I do not believe that in every case one cannot place reliance on the sole testimony of a single eye-witness but it varies from case to case where sometimes a single witness is truthful beyond doubt and sometimes tens are not. Anyhow, the safer dispensation of justice is to seek corroboration in case of single eye-witness who in matter of interest cannot be isolated from the deceased. In the present case, the wife cannot be taken as disinterested witness and the above discussion on each aspect of the case has proved that she could not stand the acid test of credibility laid down by the superior Courts. This becomes all the more pronounced when one stands confronted with an F.I.R. That seems to have been recorded after thorough investigation on the spot rather even after the preparation of the site plan and making all the recoveries involved. In view of the prosecution having not proved its case, the factum of abscondence cannot be taken against the accused.
Consequently, the .Appeal is accepted, the impugned conviction and sentences, dated 14-7-1992 recorded by the learned Sessions Judge, D.I. Khan is set aside and the accused if not required to be detained in any other case, is directed to be released forthwith. As two accused are absconding, the case property may be kept intact. The connected criminal revision is hereby dismissed.
' MIAN SHAKIRULLAH JAN, J.--- I am having the privilege of having gone through the judgment of my learned brother but regret to express my inability to subscribe to the view taken by him and also with some of the reasons advanced in this respect.
2. The facts need not to be renarrated as have been given in detail, but, in short compass that the deceased was done to death in his house by his real uncle over the demand of his share in the property, however, where necessity is felt, then reference will be made.
3. The deceased who was left orphan at the time of his minority as stated by P.W.8 Mst. Sakeena, the complainant and eye-witness, in her statement, "My husband was minor at the time when his father died." and the accused-appellant who is his uncle, and the deceased demanding his share in the property from him which lead to the present occurrence.
4. The occurrence has taken place in the house of the deceased at the time of sunrise in the month of January. The deceased who was serving in the Armed forces had come on leave. The prosecution relied on the ocular version of P.W.8 Mst. Sakina, widow of the deceased and Rehmatullah P.W.9, the brother of Mst. Sakeena in addition to the other witnesses the important of whom are P.W.10, the Investigating Officer and P.W.4 Karim Khan, A.S.I., witness of various recoveries and on sufficient circumstantial evidence. The moot points for consideration are whether these two P.Ws. Were present at the time of occurrence and have seen the same and after answering the same in positive, then whether they are the truthful witnesses, their statements have got the support of other circumstantial evidence and their statements worth reliance.
5. The presence of Mst. Sakeena in the house at the time of occurrence, which is a morning time, with her husband who had come on leave would leave a person with no doubt to suspect her presence at the spot at the eventful time when the natural course also supports this fact.
6. The complainant after the occurrence took the deceased then in injured condition to the police station in a car which is at a distance of about 30/31 Kms. From the spot where she lodged the report duly thumb-impressed by her. The time given in the F.I.R. And the statements of the P.W.
Reveals that the occurrence has taken place at sunrise time or immediately after that and on the relevant day the sunrise time in the area was most probably after 7-15 a.m. So after making arrangement of a car etc. In such a far-flung area and bring the injured person to the police station with such a distance as mentioned above, cannot be said that the report was not lodged in the police station at the time mentioned therein which facts further get support from the registration of the case i,e, what is called "Chakeedgi Parcha" for which the time has been given 9- 20 hours and further strengthened by the incorporation of the Karawai police on the F.I.R. Exh.P.A.
And renarrated by P.W. S.H.O. Which remained unchallenged. The case was initially registered under section 307/34, P.P.C. And injury sheet of the injured person was then prepared which is Exh.P.W.10/1 bearing F.I.R. No, and name of its lodger and the deceased then injured was referred to the Civil Hospital, Panyala but there the doctor was found on leave and the injured was taken to D.I.
Khan where at 10-30 a.m. The doctor reported that the injured was then dead at that time and back referred to the Civil Hospital, Panyala for post-mortem purposes, these facts find mention in Exh.P.W.10/1. All these facts show that when the report was lodged by the complainant in the police station he was in injured condition, referred for medical examination and if in the statement of the complainant has it come that the deceased succumbed to his injuries in the way to the police station, would not, in any way affect the factum of lodging the report by the complainant in the police station and would not detract from its intrinsic value, otherwise supported by sufficient material on record. This may be due to the misunderstanding by mentioning the hospital it was written police station or it may be due to the fact that the complainant was of the opinion that the deceased at that time was almost dead as it had been mentioned in the Karawai police that the deceased then was in a very precarious condition, unable to make a report and that is why the report of his wife, the complainant was written/incorporated and P.W.10 Ashraf Zaman, the person to whom the report was lodged stated in his statement:-- "I was present in the police station when the deceased, then injured accompanied by Mst. Sakeena complainant and others was brought to the police station in a car. The deceased then injured was in a precarious condition and, as such, Mst. Sakeena lodged the report which was got recorded by me."
' Then reference has been made to Karawai police recorded in the F.I.R. Which is very relevant piece of evidence as firstly it has been produced in evidence and exhibited making it part of the judicial record (evidence) and secondly this relates to that part of the F.I.R., the author and scribe both of which is the person who reduced it (F.I.R.) to writing and who subsequently appeared in the Court testified the same but it does not relate to the part of the F.I.R. Which was recorded at the instance of the complainant and that portion does not become part of evidence unless the lodger of which himself appeared in the Court and narrated the story in the Court of the facts as mentioned in the F.I.R. All this effort is made to show that all allegations of the complainant are supported by other evidence i,e, statement of P.W.10 who stated that, what he had done spontaneously at first available opportunity in the shape of Karawai police in the F.I.R. Furthermore, according to P.W.4 Karim Khan, A.S.I. He alongwith the Investigating Officer reached at the spot at 10-40 a.m. And if the case was registered after spot inspection, then it would have definitely been at 10-40 a.m. And not at 9-20 a.m.
7. So, it is concluded beyond shadow of doubt that the complainant has lodged the report in the police station as revealed from the above discussion and this simple fact by mentioning by the complainant that the deceased succumbed to his injuries while on his way to the police station, would not affect the factum of lodging of the report of the complainant in the police station in any way when otherwise there is sufficient material to support that the report was lodged in the police station and which facts have not been challenged by the defence while cross-examining the various witnesses, even suggestions have not been made to show that the accused did not admit or did not agree with the prosecution on the factum of lodging of the report in the police station by the complainant. Though the fact of non-cross-examining the witness may not very helpful to the prosecution if the version does not get support from other circumstances of the case or it is not in line with other evidence or it suffers from its inherent infirmities which does not need cross- examination and by itself it does not worth reliance but here in this case this is not the case.
8. The F.I.R. By itself does not suffer from any infirmity or omission and it had been lodged in accordance with the requirements of law. In the instant report all the necessary facts have been mentioned and the F.I.R. Is not supposed to be an elaborate one containing all the minute details.
The complainant in her statement has stated nothing else or more to describe that an improvement or the introduction of a new material fact which should have been stated in the F.I.R., but was omitted at that time and now the attempt is made to bring something on record to fill up the lacuna already left at the time of lodging of the report or bring it in line with the circumstances of the case which revealed themselves later on. In this case if we look both at the F.I.R. And the statement of the complainant in juxta-position with each other and in view of the circumstances of the case, no material facts have been brought to indicate any deliberate attempt on the part of the complainant, or her inclination, to bring the rope in the neck of the accused in all probabilities.
9. The other circumstantial evidence, or the circumstances of the case, also support the complainant and not contradicting her if a look is made on the site plan Exh.P.W.10/2 that would show that when the accused fired first, the deceased was on point No,1 after which when he began to run towards his Kotha, then again he was fired upon at which time the accused, after shifting their position from points 2, 3 and 4 respectively, were standing at Points Nos.2-A, 3-A and 4-A.
There are signs of hitting of bullets at point No,B, where is a pile of stones, and also at points C and D wherefrom i,e, points C and D, two depressed bullets were found. This explains that why the accused changed their position after firing first from points 2, 3 and 4 to 2-A, 3-A and 4-A and that is probably because of the deceased has taken shelter beyond the heap of stones, so it was difficult for them to hit the target, so they changed the position and when the deceased felt himself unsafe from these new changed positions of the accused, he tried to run away towards the Kotha and thus he was hit on his way, where after he fell down on the ground. The site of the injuries on the body of the deceased also show that he was hit while he was in running position and in a moving state having left side towards the accused. Further it is not the case of prosecution that each and every bullet and pellet after emerging from the barrel hit the deceased. The very fact that some bullets found on the spot reveals that all of them did not hit the target and this would also answer the suggestion that deceased was hit by only one shot possibly of a shotgun. The shot attributed to the accused-appellant from a close range after scaling over the wall and coming close to the deceased, the fact that the deceased was not fired upon on his vital organs i,e, the head and heart instead of at the tip of the shoulder would not an answer to a question that who had done it as the circumstances of this injury that after its exit the bullet hit the earth embedded in it and was recovered from there would be sufficient to show that this injury, as alleged by the complainant, has been received by the deceased in that position whether it was done by this person or by that person and it cannot be said had it been done by the particular person then the injury would have been on the head and heart and if it is in the present position, then its causing by the accused-appellant would be excluded, as from this place, as stated earlier, a bullet of .303 bore embedded in the earth upto the extent of about 4" was recovered alongwith an empty of .303 bore. This step of the accused-appellant taken by him of scaling over the wall coming near to the deceased can also be explained on the ground that at that time the complainant was standing nearby the deceased and possibility of her hitting by the firing from distance made the accused to come near the deceased to avoid harm to the female as what is done in the locality to avoid harm to the female in all probabilities and when she was trying to avoid more harm to the deceased and in which process he was fired upon on a location what has been stated as non-vital. The purpose for which the deceased has come out of the Kotha that is urinating and his presence first at point No,1 without any Chadar etc. Would be in line with the circumstances of the case as for urinating a person comes out without any formal dress or more dress on his body than the one what he is wearing already and specially from a Kotha having the hearth. This is a house which is a Katcha situated in a village of backward area to such an extent that even it has got no door at the main outlet as stated by Mst. Sakeena P.W.8 and without any latrine etc. As not shown in the site plan, then a person for the said purpose would naturally get the needful at point No,1 and without finding any urine etc. Would not negate the prosecution version as it is not the case that after urinating he was fired upon. The difference in the statements of witnesses, Investigating Officer and Rehmatullah with regard to material, of which the wall is made, whether of mud or stones would make no difference, firstly, as the type of the house as discussed above, would be having a wall in which stones could be used to be cemented by mud, and, secondly, a portion of statement does not relate to a fact which has taken place at that time but to fact exists all the times and both witnesses cannot be said to have not seen the wall as the Investigating Officer would naturally have been to spot and the other is brother of the complainant where she resides and her brother and several times used to visit the house.
10. The mathematical precision cannot be expected from such rustic Pardanashin lady of a far flung village to mention the time of occurrence in hours or other facts of the case in minute detail.
The story and the narration which has been made by the complainant is quite natural and her statement does not seem to suffer from inherent infirmities or omission or addition to make her statement unworthy of credit. She is the witness who cannot be termed as interested one as interested witness does not mean that the witness has got some relation with the deceased but in the strict sense the interested witness is that who, in addition to the relation with the deceased, has got previous enmity or it will or some motive for false implication of the accused and to substitute him for the real culprit who may be other than the real accused. Though it is a case of involving of more than one accused but the number of injuries, the recovery of various empties etc. Show that it is the job of more than one accused and if it is held that it is the job of one, then the present appellant would be the person amongst the three responsible for the offence as if the net is thrown wide to implicate more male members of a family, then the important role or the greater or the effective role is attributed to the person who is the real accused while the others are given the ineffective or less important role sufficient to satisfy the complainant for the involvement of other male members of the family but confined the stress only against the accused actually participated in the crime. Attributing a greater role instead of other two co-accused, to the appellant who is their father aged 60/65 years further gives strength to veracity of the prosecution story had he not done, he would have not been attributed such a role (i,e, greater role to an aged person). In this case the scaling over the wall, coming close to the deceased and then firing at him was given to the present appellant and if it is taken for granted that it was only one accused, then it would be the appellant and non-else.
11. The non-production of Ayaz or Banochi would not affect the prosecution case as it is not the case of the prosecution or even of the accused that at the relevant time both Ayaz and Banochi were present in the house, rather it is in the statements of the witnesses that though they having the "Kothas" in the crime house but they are not residing in that house, but somewhere else. So when it is not the case of the prosecution and even not of the accused at the trial that these were the witness who were present at the spot and their production was withheld which would affect the prosecution case adversely and specially when a witness is cited but abandoned most probably that he is not material one and facts of the case also show as such, non-production of such witness cannot be considered as fatal to the prosecution.
12. The question now comes to the presence of the other witness i,e, Rehmatullah. His presence cannot be doubted because of the fact had he been present he would have been the target of the accused also as no man is expected to kill a person only to do away with the evidence in the case like the present one. Such like questions (not to spare the witness) arise only when both the deceased and the witness having the same motive with the accused. From the reading of his statement there is no material contradiction etc. To infer his absence but as the statement of this witness suffer from inherent infirmity and even for that matter, the prosecution story to show his presence on the spot at the relevant time as his reaching from his house at the hearing of the fire shots at a time when the accused-appellant was present in the complainant's house does not seem to be correct, though he may be taken as a witness who arrived after the occurrence and to whom the narration has been made. Thus, a witness of corroboration of spontaneous narration of the complaint.
13. The motive cannot be doubted only on the ground that because the proof of the landed property has not been placed on record. The version in this respect is sufficient which otherwise could not be doubted from the statement of the witnesses itself. The accused, in his statement under section 342, Cr.P.C. Attributed his implication by the complainant at the behest of his real brother Ayaz who has married Mst. Banochi, the mother of the deceased after the death of his father, but without explaining the reason that what kind of motive or enmity he has got with him.
14. The accused after the occurrence became fugitive from law and he was arrested after about 9 months of the occurrence and that is also not through his voluntary surrender, is one of the corroborative evidence available in the present case. If the evidence of a sole witness is found to be worthy of credit, true and reliable then the conviction can be maintained even on this sole testimony which exists in the present case.
15. Keeping in view the abovementioned facts, it cannot be said that the accused is not guilty of the offence and thus found him guilty of the offence. As the motive given is the grabbing of the property of the share of the deceased by the accused, something might have been said by the accused about elder uncle may not be immediately before the occurrence but might be sometime before, which has reached the appellant or conveyed to him which infuriated him and killed the deceased and the very act of the appellant by scaling over the wall coming near to the deceased and firing at him shows that he was not cooling down unless he achieved the aim. So, the normal penalty of death is not attracted to be awarded to the accused-appellant. Consequently this appeal is dismissed, the conviction and sentence of the accused-appellant is maintained. As two accused are still absconding, the case property may be kept in tact. This judgment would not affect the trial of the two absconding accused whose case would be dealt with independently irrespective of the observations made herein before with regard to the case of the appellant.
' ABDUL KARIM KHAN KUNDI, By his judgment and order, dated 14-7-1992, Sessions Judge, Dera Ismail Khan found Faizullah appellant guilty on the charge of murder of Muhammad Ali deceased by firing inside his house along his co-accused in furtherance of their common intention under section 302/34, P.P.C. And accordingly sentenced him to imprisonment for life and a fine of Rs,20,000 or in default two years' R.I. Further with direction that half of the fine on recovery shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. On appeal filed by the convict appellant and revision filed by the complainant for the enhancement of the sentence the two brother Judges agreed to the extent of the dismissal of the revision petition but differed on the conviction of the appellant on the charge of murder that one ordered his acquittal while the other ordered the maintenance of his conviction and the case was accordingly referred to a third Judge (the undesigned) for decision.
3. After going through the record with the able aid and assistance of the learned counsel for the parties and also hearing their arguments I have formed the opinion to agree to the judgment and order of my brother Judge Mian Shakirullah Jan to maintain the conviction and sentence awarded to the appellant for the reasons as follows:--
(a) The venue of the occurrence inside the house of the deceased is not disputed and it also stands established from the recovery of bloodstained earth, empties and spent bullets.
(b) The timing of the occurrence is said to be after sunrise and sunrise time is stated to be 7 a.m.
On the day of occurrence. The timing of occurrence has not been questioned during the cross- examination of the witnesses and the statement of the accused, however, at the Bar the learned counsel for the appellant agreed that from the medical evidence reporting the probable time between injury and death 3 to 3-1/2 hours while the F.I.R. Was registered at 9 a.m. And Mst. Sakeena P.W.8 had stated that the deceased succumbed to the injuries on his way to the police station i,e, before 9 a.m. As such the timing or occurrence would be 5 to 6 a.m. i,e, before sunrise. On the point there is a direct evidence of the P.Ws. That the occurrence took place after sunrise. Further, the deceased succumbed to the injuries after the registration of F.I.R. At 9 a.m. Under section 307/34, P.P.C. And not section 302/34, P.P.C. And also the evidence that the deceased died on his way to the Hospital from police station, one would accept the timing of occurrence as after sunrise.
(c) The presence of Mst. Sakeena P.W. The inmate of the house in the winter season appears to be natural and in the absence of evidence to the contrary her presence at the scene of occurrence would be acknowledge as a fact. The presence of Rehmatullah P.W.9 living in the neighbourhood who has been attracted to the first volley of fire-shots and to have witnessed the second part of the incident that the appellant fired a shot at the deceased with his .303 bore rifle, would ring correct and true.
(d) Mst. Sakeena is the wife of the deceased and Rehmatullah is her brother. Appellant is himself the uncle of the deceased. Mst. Sakeena was thus his daughter-in-law. Mst. Sakeena has spoken about the motive that her husband wanted the partition of the joint land and that the appellant did not agree to it and on that score the appellant has put the deceased to death. Learned counsel for the appellant argued that in view of the appellant's refusal for partition the deceased was likely to nurse an active grudge as against the appellant and not vice versa. However, we do not know about the details of the preceding occurrence as in what terms and tone the demand for partition of the joint property was made and turned down. The motive has been denied by the appellant and if that is the position then Mst. Sakeena was not to be called an interested witness at all and only her relationship with the deceased as to duel her as only one way interested and since she did not bear any animus as such she was not the doubly interested witness and as such the evidence of the two eye- witnesses could not be said to come from interested quarters not worth reliance.
(e) It was pointed out that Mst. Sakeena had stated that she was sitting besides the hearth at the relevant time and on hearing the report of the fire-shots she stood at the door of the Kotha. It was argued that she might not have witnessed the occurrence of the first volley of shots. There has, however, not come forth evidence if the hearth was close to the door of the Kotha or at some distance but if she has only stood at her place and had witnessed the occurrence, the same would suggest that the hearth was close to the door as she witnessed the occurrence of the first volley of shots. Rehmatullah has been made the eye-witness of the second time shot fired by the appellant at the deceased and so the lady has stated that afterwards she came out of Kotha that the appellant has also scaled over the wall and fired a shot at the deceased in lying position.
Reference was made to the medical evidence reporting wounds Nos.1, 4, 6 and 8 as entrance wounds. It was argued that all these wounds were sustained at left side possibly as a result of one .12 bore shotgun fire and that the appellant who was charged for firing with his .303 bore rifle should absolve him of the charge and the prosecution story shall be rendered as false. The Medical Officer has been cross-examined and he stated that injuries Nos.4 and 6 were not possibly caused as a result of one fire-shot. He further stated that the injuries could be caused to the deceased both in lying condition as well standing condition. He also stated that the injuries would be caused to the deceased as a result of either pellet or bullets. True the deceased was caused one or more wounds as a result of .12 bore's shotgun fire as a pellet was recovered from interior of the scalp near the inner surface of the occiput inside the brain matter but there have also been recovered three .303 bore deformed bullets from the spot alongwith the three .303 bore empties freshly discharged while one of the deformed .303 bore bullet has been recovered from underneath the dead body dug in the earth 4" down which will go a long way to establish that the appellant has fired upon the deceased in lying condition as claimed by the two eyewitnesses.
(f) The motive also appears to be natural that the deceased asked for the partition of his joint land and the appellant refused. The motive would also appear to be established as the said motive put to the accused during his examination under section 342, Cr.P.C. Was explained that his other brother Ayaz who was second husband of the mother of the deceased has been taking the share of Muhammad Ali deceased and that he has been realizing his own share alone from Muhammad Ayaz. Muhammad Ayaz and the mother of the deceased were neither stated as witnesses by the prosecution nor produced in the defence although Ayaz is the uncle of the deceased but on the other hand is the brother of the appellant. It was suggested to the P.Ws. That Ayaz and his wife were also living in the same house but they denied and if Ayaz and his wife the latter being the mother of the deceased were to bear softer corner for the deceased in preference to the appellant. In case Ayaz has been refusing to pay rent produce to the deceased the latter should nurse a grudge against him and not against the appellant. It cannot be a case that the wife of the deceased has to falsely charge the appellant and his sons for the real culprit who has also not been suggested or named during the course of cross-examination or statement of the accused.
(g) Last coming to the abscondence over a period of nine months which has been explained that the appellant has not-received any notice and that he was not at his village during the period of occurrence. He had gone to Afghanistan in December, 1989 for Ziarat and that after Ziarat he was occupied with Jihad with Mujahidins and on return after learning the charge against him for the first time, he surrendered himself to the police. In fact this is no plausible explanation of the abscondence. Appellant wanted in the first instance to produce evidence in defence and also to examine himself on oath in disproof of the charges and allegations made against him at the trial perhaps to rebut his abscondence, motive and other evidence but then again he made a statement not to produce evidence in defence and also to examine himself on oath in disproof of the charges and allegations made against him.
' In view of the above I would agree with my learned brother Justice Mian Shakirullah Jan and order the dismissal of Criminal Appeal No,19 of 1992 to maintain the conviction and sentences awarded to the appellant by the learned Sessions Judge, Dera Ismail Khan. ppeal dismissed.