This judgment will dispose of Criminal Appeals Nos. 24 to 29 of 1976, and Criminal Revision No. 21 4 of 1976 filed by Amir Khan, complainant. Sher Dil, Suba Khan, Mir Khan. And Ahmed Khan are brothers; while Mani Sher is the son of first cousin. Sher 4 it and his brothers were the first cousin of Muhammad Khan deceased. Later's sister is married to Fateh Khan who is a brother of Sher Dil appellant. The appellants as well as the complainants are ref:der ts of Wan dha Abizer Khelanwala, Dakhli Sultan Wala Sharqi, Police &aim Musa Khel, Tehsil and District Mianwali. The back ground of this incident is that Muhammad Khan deceased, being a married man already, developed illegitimate connections with Mst. Sardaran, his first cousin, and sister of Sher Dil and his brothers.
This affair became a common knowledge in the village, bringing dishonour to the family el the appellants, who became ignited with a passion to wreak vengeance which resulted in a number of criminal cases being registered between the complainants on the one hand and appellants' party on the other. The failure of previous efforts did not lessen the determination of the appellants. Final opportunity was provided at Degarwela on 5-11-1973 when Muhammad Khan deceased, his father Amir Khan (P. W. 16), his wife Mst. Sardar Khatoon (P. W. 13) along with Vuhaminad Khan, P. W. 11, were returning from village Chhidru after doing some shopping (from the shop of Muhammad Khan P. `al. t). The party was going towards their Wanda and arrived at Odin Khelarwala when they saw a Khoia towards south of pucca road. Suba Khan and Sher Dii, armed with gams, came out and challenged Muhammad Khan. The complainant ran towards the north, and from a depression on that side, Khan Mir, Ahrnad Khan, and Alam Sher, armed with guns, came out and surrounded Mohammad Khan. Alam Sher fired and hit tee let cheek of the deceased Muhammad Khsn. He fell down. Khan Mir fired the second shot that hit the head of the deceased. When his wife (Mst. Sardar Khatoon) dared to rescue her husband, she was fired upon by Suba Khan. Ttie fire hit her left leg at thief?. Thereafter all the appellants firs d at the deceased, who died at the spot and left for Wandha Abizar. Apart from the father, and the wife of the deceased, the incident was witnessed by Muhammad Khan (P. W. 11). Who had accompanied the party from village Chiddru and Hakam Khan (P. W. 12).
2. The learned Sessions Judge after examining 16 witnesses for the prosecution, and statements of the appellants, and exhibits of prosecution and defence, found all the appellants guilty, and convicted them under section 302/149, P. P. C. For the murder of Muhammad Khan and sentenced them to imprisonment for life and a fine of as. 500 each, and under section 307 read with section 149, P. P. C. For attempt on the life of Mst. Sardar Khatoon P. W. 13, and sentenced them to 5 years' R.
I. Each, and fine of Rs. 100 each, and under section 148. P. P. C. Sentenced to two years' R. I. Each (all the sentences to run concurrently). The judgment was delivered on 11-12.1975. By separate judgments, dated 1 I-12-.975, all the appellants were convicted under section 3 of the Arms Ordinance, 1965. Each of them was sentenced to three years' R. I.
3. After the assailants had left, the complainants' party, along with the dead body of Muhammad Khan, and Mst. Sardar Khatun P.W. In an injured condition, went to Musa Khel Police Staton which is 7 miles away from the place of occurrence towards the south. There at 6-45 n. m , an F. I. R. Exh. P. A.
Was lodged by Amir Khan P. W.
16. At the outset, I propose to consider legal objections taken by Mr. M. B. Zeman, learned counsel for the appellants, regarding the admissibility of F. I. R. Exh. P. A. And the statement of Amir Khan P. W.
16. On 8-12-1975, Amir Khan P. W. Appeared in Court. The learned Sessions Judge observed that he appeared to be ill and could not speak properly due to facial paralysis. With the agreement of the learned counsel of defence, the statement of the witness, recorded before the Committing Magistrate, was transferred to the Sessions file under section 33 of the evidence Act. The learned counsel contends, with justification, that there is no co-relation between facial paralysis and inability to speak. If the witness could not speak properly, he could have been examined in the form of leading questions as provided in section 154 Of the Evidence Act. The condition of the witness was not such that could justify the conclusion that be was incapable of giving evidence, The assent of the defence counsel, non-obstante, the provisions of section 33 of the Evidence Act were not attracted. In the c?Re of Ali Haider v. State , it was observed that foundation for recourse to section 33 of the Evidence Act must be laid down by strict proof that the witness was incapable of giving the evidence. Incapacity is not inconvenience.
4. In Munsif Rhatz v. State , which is a Division Bench ruling, it was held that the admission of the defence counsel does not act as estoppel against the accused. In Mewa v. State , it was observed that the witness of tender age, becoming nervous in the Court, was not sufficient to bring forth the provisions of section 33. In Matta Badian v. State , it is reported that there must be strict proof of incapacity.
5. The above cases support the proposition that there must be ample proof of incapacity. From the order of learned Sessions Judge, at the most, it can be said, that the witness may have some difficulty of speaking. Difficulty in speech is not the same thing as incapacity of speech. There does not appear to be auy teat conducted by the learned Sessions Judge. He rather took charitable view which was strengthened by the attitude of the learned counsel. In all fairness, I hold that the evidence of Amir Khan and the F. I. R. With all its figs and thistles, must be kept out of consideration in determining the euilt or innocence of the appellants.
6. On 6-11-1973, Ch. Ahmad Ali, S. H.
0., P. W. 14, inspected the place of occurrence wherefrom he recovered three empty cartridges Exh.
P. 2/1.3 and 12 empty shells Exh. P 1/1-12 and took them into possession vide memo. Exh. P. C.
Saifullah P. W. 9, the recovery witness, is brother-in-law of the deceased. Fateh Khan another1 2 3 4 recovery witness has not been produced. He arrested all the accused on 9-11-1973 and handed over the ab Are recoveries to Luqman, F. C. And blood-stained earth and sealed parcel containing blood-stained earth, for transmission to the Chemical Examiner and Forensic S.Ience Laboratory, Lahore. From 6th to 9th of November 1973, the Investigating Offixr kept the recoveries with him and did not even deposit them in the Police Malkhana, contrary to pracice; alteit he had opportunity to do so. He gave no explanations for this behaviour. The recovery witness is P. W. 9 His statement regarding recovery was recorded on 19.1-1974. No explanation is fortncoming as to why the statement of the recovery witness was not recorded on 6-2-1973. The recording of the statement of this witness after more than 2} months is extraordinary. Under these circumstances, I propose to regard recovery of empties from the place of occurrence as of no corrob)rative value; although according to the report of the Forensic Expert, Sh. Abdur Rashid P. W. 15, many of those empties were fired from the weapons recovered from Ahmad Khan, Khan Mir, Subs Khan and Sher Dil. (Exh.
P. N. Is the report of this Expert). Rifle recovered from Alam Sher Exh. P. 3 vide Exh. P. G. Could not fire due to some inherent mechanical defect. Gun P. 7 ride Exh. P. J. Was recovered from Sher Dil and rifle P. 8 vide Exh. P. K. Recovered from Suba Khan and rifle P. 11, vide Exh. P. L. Was recovered from Ahmad Khan, All the recoveries were made from the residential Kothas of the accused on 16-11-73 at Wanda Abizar Khalan Wala Dakhli Sultan Wala Sharqi. Khan Mir P. W. 10, the recovery witness, is the consanguine brother of Mst. Sardar Khatun P. W. Widow of the deceased. According to his statement, he joined the police party when it was passing by the house of the deceased; whereas according to the Investigating Officer, the recovery witnesses met him when he alighted at Odin Khelan Wala bus stop and from there he took them to the place of the recovery. On the basis of the above, learned counsel for the appellants argues that the above recoveries were also doubtful. In my opinion, the above variations are not so material as to negative the factum of recoveries.
However, under the circumstance, their corroborative value is of title significance, since the material part of the evidence on this point 1. e. Marriage of the empties with the weapon has been left out of consideration.
7. On 7-11-1973 at 9-09 a. m. Dr. Janished Alam, Medical Officer, Civil Hospital, performed autopsy on the dead body of Muhammad Khan which was identified by his son Khaa Zeman P. W. 4 and found the following injuries on the body : "(1) A fire-arm wound of entry 4" X on the right side of the neck, by thing tile right car,
(2) A firearm wound of exit 24" x 2" on the left side of cheek over the angle of left mandible with fracture of the underlying bone.
(3) A firearm wound of entry 1" x I' on the right side of the head 4' above right ear.
(4) A fire-arm wound of exit 6" x 5" on the back of the head with multiple communited fracture of the skull, brain matter smashed.
(5) A fire-arm wound of entry 3' x 14" on the back of the right wrist with fracture of radius and ulna.
(6) A fire-arm wound of exit 2' x 4" on the inner side of the right thigh 1' above knee-joint.
(7) An abrasion mark x r on the inner side of the right thigh 1' above knee-joint.
(8) An abrasion mark x 4" on the inner side of the right leg 4' below right knee-joint.".
In the opinion of the doctor, injuries were sentient in the ordinary course to cause death. Exh. P. B. Is the post-mortem report and Bah. P. B. 1 and Exh. P. B. 2 are doctor's sketches. On 6.11-1973, at 9-00 a. m. Dr. Mrs. Aisha Sher Muhammad, Women Medical Officer, D. H. Q. Hospital, Mianwali, examined Mst. Sardar Khatun P. W. And found the following injuries on her person :-
(1) A penetrating wound 4' x if' nearly circular margins blackened on the left thigh 10' above the left knee-joint. This was a wound of entrance. This was on medial side of the thigh.
(2) A penetrating wound 1' x muscle deep elliptical in shape irregular margins on the left thigh 9" above the left knee-joint. This was on the lateral side of the thigh, and was a wound of exit. Wounds Nos. 1 and 2 were connected with each other.
(3) An abrasion 1" x if' covered with scab on the right fore-arm 34' wrist joint with a swelling 2" st 2' around the wound.
(4) An abrasion 4' x I covered with scab on the right fore-arm 44' above the wrist joint."
A11 the injuries were simple. Injuries 1 and 2 were caused by fire-arm and 3 and 4 by blunt weapon.
Duration of injuries between 12 to 24 hours. Exh. P. N. Is the Medical Lego Report and Exb. P. N. /1 is the sketch.
8. Muhammad Amir F. C. P. W. 3 had escorted dead body of Muhammad Khan and Mst. Sardar Kbatun to the hospital. On 9-11-1973, Ahmad Ala, S. I: P. W. 14, handed over two sealed parcels containing bloodstained earth, empty cartridges recovered from the spot to Luqinan P. W. 5 who delivered those to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. Sabir Hussain, S. I. P. W. 6 on 16-11-1973 received five sealed parcels containing four rifles and a gun which were kept at police Malkhana. Maqbool Hussain Shah, F. C. P. W. 7 on 19-12-73 delivered those guns at Forensic Science Laboratory, Lahore. Ghulatn Akbar Patwari, P. W. 8 prepared a site plan Exh. P. F.
He admitted that Mauza Chhidru and Mianwali are connected by metalled road. Buses and taxis ply in between these places. He also admitted that Adia Odin Khelanwala is about two furlongs away from the place of the occurrence and is on the metaled road. The site-plan did not show the exact spot from where the empties were recovered. The occurrence took place in Khasra No, 280 where there was jawar crop of 3} feet height.
9. Khan Muhammad, P. W. 11, is an eye-witness of the occurrence. He has shop at village Chhidru, where complainant's party had done the shopping. He accompanied the complainant's party to Lyellpur. He narrated the incident (the occurrence) as recorded, ante; viz. Sher Di and Suba Khan armed with guns emerged from a Khola and they challenged Muhammad Khan. Out of fear, and fcr succour, the complainant's party ran northwards from where Khan Mir, Ahmed Khan, and Alam Sher, armed with guns emerged. Alam Sher fired hitting right side of the neck; on which the deceased fell down, whereafter Khan Mir fired which hit the head of the deceased. When Mst.
Sardar Kbatun went near, Suba Khan fired at her, which hit her left thigh. Thereafter, Sher Dil fired a shot hitting the right fore-arm of the deceased. Then Ahmad Khan fired which hit the head of the deceased. Thereafter each fired one shot which did not hit anyone. He accompanied the complainant's party to the police station, where, according to him, Amir Khan lodged the F. I. R. This witness is closely related to the accused; his wife being niece of Sher D1 and the mother of Suba Khan and others is his cousin.
10. Learned counsel for the appellants has attacked his statement on the ground that: this witness had been thrice chailaned in murder case?, and bad already thrice appeared as a witness in murder cases; that though he had served in the Army for 15 years and could distinguish between rifle and the gun; yet he mentioned guns; whereas four rifles had been recovered; and used in murder; that he is intimately related to the deceased since his eon is married to the daughter of the deceased, and the son of deceased is married to his daughter; that he has been equivocal in many suggestions of enmity with the accused party; that Razaq is cousin of Alam Sher and the witness bad been chalawed for the murder of Khan Mir who is cousin of Razaq; that he adrnittel that Razaq is his enemy and was sitting in the Court with the accused party.
11. The above circumstances are sufficient to hold that this witness is not completely independent.
Therefore his testimony requires corroboration. Hakam Khan P. W. 12 is another eye witness. White going towards his house on foot, this witness saw the occurrence. His evidence regarding the incident is practically the same as narrate: by Khan Muhammad P. W.
11. The learned counsel challenges the testimony of this witness on a number of grounds. Firstly, that he is merely a chance witness. It has not been argued that normally it was none of his business to be present at the place of occurrence. Be deposed that at Degarwela after alighting from a bus, he was going towards his house, and in the way, saw the occurrence. This may be normal route of this witness. The time that he was passing by the place of occurrence was Degarwela which is normal time for men of the world to go back to their homes after attending worldly duties. So it is not possible to hold that he is a mere chance witness. Next it is contended that wife of Arnie P. W. 16, father of the deceased, is his cousin. The above fact comes from the testimony of Amis. Khan P. W.
16. Since I have excluded from consideration the testimony of Amir Khan P. W. 16, at the contention of the learned counsel for the appellants and that the admission of his testimony is against the law, no advantage can be taken by the appellants of a fraction of the testimony of Amir Khan. As mentioned above, the statement of Amir Khan is excluded with all its figs and thistles. The next circumstance pointed out by the learned counsel is that Abdus Sattar is his brother-in-law. He is being prosecuted and Amir Abdullah brother of Alam Sher appellant and Abdur Rang his cousin are eye-witnesses against him. The witness did accept the fact that Abdus Satter is brother-in-law but expressed ignorance about his prosecution under section 307, P. P. C. Or whether the aforesaid brother and cousin of the accused are witnesses against him. He, howeva, denied the suggestion that he was deliberately concealing that fact. This witness has been prosecuted in a murder case but was acquitted. Great efforts had been made to involve this witness in a state of inimical relationship with the appellants, but with little success. It is not possible to hold that this witness (Hakam Khan P. W. 12) is an unreliable person, or that he has positive enmity with the accused. His relationship with the deceased has not been established on the record.
12. The most material witness in the case is Ala. Sardar Ithatun P. W.
13. She bears the stamp injuries on her person. She had narrated the incident as mentioned above.
Her presence at the spot has not been seriously challenged. Though a faint suggestion has been made that her injury may be self-suffered, but this theory has not been pursued. She denied the suggestion that since the deceased was of a bad character and had many enemies and some unknown persons had killed him in the darkness when he was alone. When she stated that the appellants had enmity with them for the last 7/8 tears, she does not seem to refer to aoy personal enmity. In fact, she had no personal enmity with the appellant. Only her husband has been engaged in a number of criminal cases with the appellants due to infirmity of his character.
13. From the above discussion, I arrive at the conclusion that she was present at the spot, saw the incident and was injured in the incident. She also corroborates the testimony of Muhammad Khan P. W. 11, and flak= Khan P. W.12.
14. Sher Dil, while being examined under section 342, Cr. P. C., denied the allegations against him and stated that the case has been registered due to Lies enmity with the P. Ws. He produced a number of documents of which, the learned defence counsel has relied upon mutation D. W. No, 6483 only. This mutation relates to certain relationship of some person such as Attalla son of 'Patch Khan was married to Ma. Tvlanara etc. However, those relationships do not appear to have material effect in the depositions of the material witnesses. All other appellants have simply denied the allegated and attributed the case to their enmity with prosecution witnesses. They, however, did not produce any defence evidence except as mentioned ibidem.
15. The defence theory that the occurrence took place at night after dark and nobody actually saw the occurrence is spelt out, inter alia, from the circumstances in which the F. I. R. Has been lodged.
On 5-114973, sunset time may be 5-15 p.m. The report weis lodged at 6.45 p.m. According to the !Mined counsel, it must be quite dark by that time. The learned counsel submits that since the pclice station is only 7 miles away and is connected by a pucca road where the buses ply, the incident may have taken place at 6-30 rather than at Degarwela. It is because of this ; that inordinate delay in the lodging of F. I. R. Has not been explained. It is difficult to subscribe to the defence case. If the incident is at Degarwela and the report is lodged at 6-45 and the police station is 7 miles (though connected by metaled road where buses ply) it cannot be said that there was an unreasonable delay. Moreover, no circumstances have been brought on the record to show that between the death of the deceased and the lodging of the F. I. R. There was enough opportunity for the enemies of the deceased to hatch a foul conspiracy. Learned counsel has also attacked the evidence of the witnesses on the ground that they had improved upon their statements recorded before the police. The injury on the left cheek of the deceased is a wound of egress, whereas it is in the police statements of eye-witnesses and F. I. R. That first 'fire hit the deceased on his left cheek.
As mentioned above, I have already excluded from consideration the story in the F. I. R. As well as told by Amir Khan P. W. 16 for reasons given above. However, when Hakam Khan, Mst. Sardar khatun and Khan Muhammad, P. Ws. Appeared ; they were confronted with their police statements Exhs. D.
D., D. E. And L. C., wherein they had recorded that first shot by Alam Sher bad hit the left cheek of the deceased. The above theory has no vital import. Injuries Nos. 1 and 2 on the deceased are related in this way. The The gross wound is on the right side of the neck 3' behind the right ear and the egress wound is on the left cheek. Since a human being is not a statue, and a person under state of fear is bound to make spasmodic movements in an erratic fashion, it may not allow proper vision. The above circumstance pointed out by !The learned counsel has little vital significance. 7 he other argument of the learned counsel that after receiving the first injury, since the deceased had fallen down, it was not possible to receive the second injury in the manner it has been described. I do not agree with the contention of the learned counsel. The second fire is an entry wound on the right side of the neck four inches above the ear and the wound of the egress of that fire is on back of the head. It is quite possible to receive such an injury while the deceased was lying on the ground.
16. Relying can the testimony of Muhammad Khan, P. W. 11, Hakam Khan, P. W. 12, and Mst, Sardar Khatun, P. W. 13,1 bold that the guilt of the appellants has been established beyond a reasonable doubt. In fact the testimony of Mit. Sardar Khatun P. W. 13 simplicier would be sufficient for purposes of convictions and sentences of the appellants. There is no merit in Criminal Appeal No, 24 of 1976 which is dismissed.
17. Criminal Appeals Nos. 25 to 29 of 1976 have been filed by Alam Sher, Sher Dili Suba Khan, Khan Mir and Ahmed Khan respectively regarding the recovery of gun P. 1 from Khan Mir ; and rifle each (1.1) from others. By judgments dated 11-12-1975, the above appellants were convicted under section 13, Arms Ordinance, 1965, and sentenced to 3 years' R. I. I have examined all the judgments.
Apart from changing the names, the judgments have been written, as if one is a facsimile of the other. In all the above five cases, the evidence consists of the statements of Khan Mir, P. W. 1, and Ch. Ahmed Ali, S. II.
0. P. W. 2 and recoveries. The evidence has been recorded in a mechanical fashion. It appears that the entire evidence was recorded once and five copies were prepared and filed in different cases.
The judgments have also been written in that mechanical fashion.
18. In case of Muhammad Younis v. State , it is reported that if there are common judgments and evidence is copied, the trial was said to be illegal viz. In violation of mandatory provisions of section 353, Cr. P. C., and sections 137 and 133 of the Evidence Act. Similarly in Nur liahl V. State , the Supreme Court disapproved the procedure whereby the evidence of common witnesses was recorded once only and their statements were read out in the other cases. Similarly in Abdul Wahecd v. State , where the evidence of handwriting expert, who was common in two cases, and whose original deposition was placed on the record of the other case through a carbon copy the procedure adopted had invalidated the trial, and re-trial was ordered. In case Qilandar Kitan v.
State , the statement of common witnesses were recorded only in one case and the carbon copies thereof were placed on the record of the other cases. It was held that the procedure adopted was illegal.
19. Under the circumstances, I hold that the trial of the appellants in these appeals were illegal.
Appeals Nos. 25 to 29 of 1976 are accepted and the cases are remanded for re-trial. For reasons5 6 7 8 given above, Criminal Appeal No, 24 of 1976 is dismissed. Since the appellants were motivated to avenge family disgrace, brought on them by the deceased, who was their cousin, the appellants do not deserve death sentence. Criminal Revision No, 214 of 1 976 is dismissed. PLD 1958 SC (Pak.) 392 PLD 1960 Lah. 1206 PLD 1958 Lah. 468 PLD 1958 Dacca 451 PLD 1953 Leh, 321 PLD 1966 SC 708 1968 P Cr. L I 776 PLD 1971 Pesh. 119