JUDGMENT AMIR-UL-MULK MF.NGAL, J.- This appeal is directed against the acquittal of Sheikh Abdul Hamid who was tried for an offence under Section 302, PPC by Sessions Judge. Quetta and was acquitted of the charge vide Judgment dated 14.2.1905.
2. If put succinctly, the prosecution case is that on 01.2.19X9 while Arshad Ali son of Kulab Khan took out his motor-cycle from his house to go to the City, the accused/respondent fired upon him with a shot-gun which hit him as a result whereof he was injured and removed to Hospital. On examination following injuries were found on his person:-
(i) Three gun shots entrance wounds circular with burned margins right lumber region at the level of Mid Axillary line. All three wounds are equal in size:
(ii) Two gun shots entrance wounds right side of chest 2" below and \1A" medial to right nipple;
(iii) One gun shot entrance wound right side of V/C near scapular region (5th V. Level).
3. The injured was admitted in Male Surgical Unit. SHO Sariab Muhammad Akram, S.I was informed who cattie to Civil Hospital, Quetta after making entry in the Roznamcha (Ex. D/5-A). When he reached Civil Hospital, he found Arshad Ali injured and he prepared statement of injuries (Ex,P/7-C).
He then left for place of occurrence. In the meanwhile a report was lodged by Sultana that her son has been injured by Sheikh Abdul Hameed. Muhammad Akram went to the house and arrested Sheikh Abdul Hameed, who came out of house alongwith a shot-gun. He also secured an empty cock/pad from the place of occurrence. He took the accused to Sariab Police Station. Since the place of occurrence was outside of his territorial jurisdiction, therefore, he informed Tehsildar.
Quetta about the incident and the fact, that the offence has been committed within his territorial jurisdiction. On receipt of telephonic information Akbar Ali Mirza. Tehsildar, Quetta directed Sardar Amir Jan. Naib Tehsildar regarding arrest of the accused and investigation of the case.
Accordingly. Naib Tehsildar went to the Police Station and took the hand of accused from PW- Muhammad Akram who also handed over him one shot-gun Single barrel, 10 live cartridges, one licence and cock/pad which were taken into possession by PW- Sardar Amir Jan vide Recovery Memo. Ex. P/7-B.
4. Naib Tehsildar then proceeded to Civil Hospital where he found Arshad Ali admitted in the Casuality Ward. According to him the injured was conscious and in his senses and he recorded statement of injured which was produced as Ex. EV 11-A.
In the statement so recorded the injured stated that he was 21 years old. He and accused were neighbours. Sometimes back father of injured was murdered by some body and the injured remained in jail during investigation. He engaged Sheikh Abdul Hameed his counsel. The fee was fixed as Rs. 30,000/- which was paid to Sheikh Abdul Hameed. But despite, that he made demand of an additional amount of Rs. 30,000/-. The injured further stated that Sheikh Abdul Hameed, Advocate has always been asking him to marry his sister but he refused to do so. Sheikh Abdul Hameed was aggrieved of this refusal and he always used to ask injured either to make payment of Rs. 30,000/- or to marry his sister, failing which he would be killed.
5. On the day of incident the injured was going towards City on his motor cycle when accused came out from his house. He was armed with a shot-gun 12-bore and shouted at the injured to stop. Simultaneously, lie opened fire. The injured received injuries and fell down. The accused made another attempt to re-load his single barrel shot-gun, but his attempt was thwarted by younger brother of injured namely, Zahid Ali. According to him one of his neighbours Saifullah brought him to Civil Hospital in a Suzuki.
6. Initially case was registered under Section 307, PPC and investigation started. The Naib Tehsildar as Investigation Officer visited place of occurrence, prepared fix. P/8-A the Site Plan with the help of Abdul Latif Patwari. He recorded statement of PWs and during investigation the accused expressed that he would be giving 164, Cr.P.C, statement and was produced before City Magistrate & EAC-I.
Quetta where he did not make any confessional statement and was remanded to judicial custody.
7. It may be noted that the accused succumbed to the injuries in the hospital and FIR lodged under Section 307, PPC was altered info 302, PPC. After submission of challan the learned Sessions Judge, Quetta framed charge on 2.9.1989. The accused DID NOT PLEAD GUILTY to the charge and claimed trial.
8. In order to substantiate the charge prosecution examined PW-1 Mirza Akbar Ali Tehsildar. PW-2 Amjad, PW-3 Anwar Sultana, PW-4 Zahid Ali, PW-5 Muhammad Rahim, PW-6 Dr. Abdul Sattar, PW-7 Muhammad Akram. PW-8 Abdul Latif. PW-9 Faizullah. PW-10 Akhtar Khatta, and PW-11 Sardar Amir Jan, Investigating Officer. The accused examined in defence DW-1 Atiq-ur-Rehman, DW- 2 Arbab L.Al Muhammad, DW-3 Amin Mengal, DW-4 Sadiq Ali, DW-5 Bashir Ahmed, DW-6 Sarfraz Khan, DW- 7 Muhammad Aslam, DW-8 T&tza Muhammad. DW-9 Qadir Bakhsh, DW-10 Pira Khan, DW-11 Muhammad Saleem, DW-12 Abdul Rehman and DW-13 Humayun. The accused was also examined under Section 342, Cr.P.C.
Besides, one Haji Abdullah was examined as Court witness.
9. The prosecution case hinges on ocular testimony of 4 eye-witnesses namely, Zahid Ali, Anwar Sultana, Muhammad Rahim Baloch and Amjad, recovery of shot-gun, live cartridges and "cock/pad of used cartridge as well as dying declaration.
10. Before proceeding further, it would be expedient to determine the question regarding maintainability of acquittal appeal filed by the complainant, who is the real brother of deceased.
According to appellant Section 2(A) was added/inserted in Section 417, Cr.P.C, vide Notification dated I4.Ll.l994. This appeal has been filed. In March, I995. Sub Section 2(A) of Section 417. Cr.P.C reads as under:- "Sub Section 2(A) of Section 417, Cr.P.C'. A person aggrieved by the order of acquittal passed by any Court, other than a I lith. Court, may, within thirty days, file an appeal against such order".
Thus after amendment in Section 417. Cr.P.C the Legislature conferred a right of appeal on a person aggrieved by the Order of acquittal passed by any Court other than a High Court. The argument advanced was that when the case was pending trial no such right was available to the complainant or a person aggrieved by the order of acquittal. Since the appeal is continuation of proceedings, therefore, any change even in tiling an appeal is to be governed by the old procedure because the amendment has no retrospective effect. Reliance has been placed on PLD 1965 SC
681. From perusal of the said judgment it appears that the Supreme Court held that a Statute cannot be said to have retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words if a Statute deals merely with the procedure in action and does not effect the rights of the parties it will be held to apply, prima facie. To all actions, pending as well as future. It is only if it be more than a mere matter of procedure, i.e. If it touches right in existence at the passing of the new Act that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of a new Act. Similarly our attention was drawn to PLD 1969 SC 599 wherein an observation was made that Statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Similarly learned counsel placed other authorities to the same effect and contended that present appeal has been filed by brother of the deceased and not by the State, therefore, the same is not maintainable because prior to the amendment only Provincial Government could file such an appeal.
11. We respectfully follow the dictum of the Supreme Court. But the only question is whether the ratio decidendi applies to the facts of the present case. Here the right of appeal against an order of acquittal has been conferred to any aggrieved person and this amendment has been made in taw vide Notification dated 14.11.1994 whereas present appeal has been Hied on 15.3.1995 against the judgment passed on 14.2.1995.
12. Amendment has been made in order to commensurate the law with the Shariah which gives such a right to an aggrieved party. Secondly when this amendment was brought in law the case of the accused was at the trial stage and no procedure of trial has been changed nor any right of present accused has been infringed. Even if this amendment is held to have affect prospectively, the present appeal is covered by it. None of the rights of the accused has been taken away by this amendment, but the Legislature thought it expedient to confer a right on a person aggrieved by acquittal in order to broaden the scope because sometimes due to inadvertance or red-tapism the Provincial Government did not prefer appeal against acquittal. The intention of the Legislature is very much clear that this law has to take effect as regards cases which were pending trial so as to confer a right to any aggrieved person (the brother of deceased in present case) to prefer an appeal against acquittal in order to bring this section in conformity with Islamic Injunctions.
13. After conscious consideration, we are of the view that accused plea has no force for the following. Reasons;-
(i) The intention of the legislature is manifest and clear that from the date of promulgation of this amendment a right of appeal has been given to a person aggrieved by any order of acquittal;
(ii) This has been done in order to bring law in conformity with Islamic Injunctions;
(iii) Even otherwise it has been observed by the Supreme Court quoting Maxwell (PLD 1965 SC 681) that where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p. 217 of his Book, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view;
(iv) No right of .The accused has been impaired or infringed by this amendment. A right of appeal against acquittal was already there under Section 417, Cr.P.C, and it has only been extended to a person aggrieved in addition to the Provincial Government which, in our opinion, has not impaired the right of any of the parties;-
(v) The accused cannot challenge the right given to an aggrieved person, of appeal, against acquittal when the matter was hot mature for filing of appeal when the amendment was brought, In fact. We do not Ind any force in the arguments because when this amendment was brought question of filing of appeal had not arisen as the matter was at the trial stage.
For all such reasons we hold that the argument of the accused is devoid of any, force and present appeal has rightly been filed under sub-section 2-A of Section 417, Cr.P.C, which is maintainable to be decided on. Its own merits.
14. Attending now to the merits of the case we proceed to assess and sift the testimony of the eye- witnesses.- It may be pointed out that out of 4 eye-witnesses. 2 are the brothers of deceased and one is the mother of the deceased. Flowerer. PW-5 Muhammad Rahim is an independent witness who belongs to none of the parties.
15. PW-2 Amjad said that on the day of incident he alongwith his brother Arshad Ali (deceased).
Zahid Ali and mother were present in their house and taking morning tea. His brother left the house for Office on motor-cycle, hid mother and brother Zahid Ali went to close the door. He heard a fire- arm report and thought that perhaps his brother's motor-cycle has been punctured. His mother and brother Zahid went, outside the house. He also came out of the clouse and saw that his brother was lying in injured condition, In the meanwhile his brother Zahid Ali and accused present in the Court respondent were grappling with each other ^nd accused was loading cartridge in the gun.
His mother asked him to immediately call Saifullah who was their neighbour. He called Saifullah and his mother requested Saifullah to bring his Suzuki. Then his injured brother was removed to hospital in the Suzuki. In cross- examination. However, certain contradictions were pointed out. It is pertinent to note that in cross-examination, on a suggestion as to who was the independent witness, reaching the place of occurrence, the witness replied it was Muhammad Rahim.
16. PW-2 Mm. Anwar Sultana is the mother of deceased Arshad Ali. She stated that her son Arshad Ali was going to Rehman Hospital for duty where lie was taking course of Nursing Orderly. It was at about 0.00 a.m. The accused committed murder of her son by means of a gun. According to her she took out the legs of Iter son out of the motor-cycle, In the meanwhile her son Zahid tried to snatch gun from the accused. The accused threw his gun towards the house of his sister. She sent her son to call Saifullah and sent, message to fetch Suzuki of Maskeen. She also mentioned presence of PW-Rahim who reached the spot. They took the injured son to hospital where he died at 10.00 p.m. As to motive, she stated that the motive of the incident was that the sister of accused wanted to marry her son, but she and her son did not agree. Secondly, the accused was a greedy person and he also wanted to marry her. The accused in presence of PW-Akhtar Khattak and Saifullah threatened that in case of refusal of his demands he would kill her son.
17. PW-4 Zahid Ali, the brother of deceased is a student. He deposed that on the day of incident, which took place on 01.2.1989 at 9.00 a.m. His brother Arshad Ali went out of the house. He was alongwith his mother and brother. He saw Sheikh Abdul Hameed who was sitting on the back side of the wall of his house. The height of the wall was. Between 3/4 feet. Sheikh Abdul Hameed fired upon Arshad Ali by a shot-gun. Arshad Ali fell down and accused came out in the open plot. The witness ran towards the accused as he was re-loading his shot gun: In the meanwhile sister of the accused came out of her house. The gun was given to Mst. Bashira. The sister of the accused, by the accused who went in her house. His mother asked Amjad Ali to call for Saifullah who was their neighbour. Saiful I ah went to Dairy farm of Miskin for having some connivence. Miskin came with Suzuki and. Saifullah and another person namely, Muhammad Rahim. Arshad Ali was taken to hospital in the Suzuki driven by Miskin. While they were in the hospital Naib Tehsildar asked them to visit his Office for recording of their statements. His brother expired and according to him Sheikh Abdul Hameed killed his brother.
18. The last eye-witness was Muhammad Rahim who used to live in Killi Jeo Jadeed. He did not know the parties. His house was at a distance of about 2 furlongs from the house of the deceased.
He used to go to town on bicycle. He saw deceased came out of his house. He started his motor- cycle and in the meanwhile he heard a gun shot tire. He saw deceased fell down. He also saw the accused came in Medani (open place) and was having a shot-gun in his hand. Accused attempted to make another fire but meanwhile 2 boys came out from the house, one of them caught hold of the accused and the other went to the house of Saifullah. He saw all this from the road. He also saw! The injured in the lap of his mother. Saifullah shouted that his neighbour has been killed by Wakil Sahib. He alongwith Saifullah and another boy went to the house of Miskin in order to fetch some vehicle. When they reached back mother of deceased was shouting that his son was killed by a Punjabi Wakil who was their neighbour. The injured was taken to Casuality where his ex-ray was taken. The witness then left for his duty.
19. Besides, the above ocular version another important piece of evidence is dying declaration of the deceased. After being fired upon and injured he was taken to the hospital. When police informed Tehsildar Quetta that offence has been committed within his jurisdiction, Naib Tehsildar PW-11 Sardar Amir Jan was assigned investigation of the case who visited the hospital and found the injured in his senses. He recorded his statement in which injured stated that sometimes before his father had been killed and he was put in Jail during investigation. He engaged Sheikh Abdul Hameed as his Advocate who was paid a fee of Rs. 30000/-. Despite that Sheikh Abdul Hameed made a demand of Rs. 30,000/- more. Sheikh Abdul Hameed has? a sister and he always used to ask him to marry his sister, but the injured refused. Sheikh Abdul Hameed used to extend threats to make payment of Rs. 30,000/- and to marry his sister otherwise he would be killed. On the eventful day at 9.30 a.m. When he was coming out of his house the accused came out of his house with a shot-gun in his hand and asked him to stop. Simultaneously he fired upon him as a resuit of which he received injuries and fell down. He wanted to make another fire but his brother reached and grappled with him. His mother and brothers were present. His neighbour Saifullah took him in his Suzuki in the hospital.
20. Recovery of a shogun and cock/pid were made by SHO and handed over to Naib Tehsildar after .When he found that the plea of occurrence falls outside his territorial jurisdiction.
21. Apart from above evidence there is another corroboration by PW-6 Dr. Abdul Sattar Baloch who examined the dead body of Arshad Ali. According to his statement the probable cause of death of Arshad Ali was due to injuries on vital organ, j^e, heart, excessive haemorrhage, shock and death.
Wounds were of gun-shot. PW-7 was Muhammad Akram. Sub-Inspector. According to him on 1.2.1989 lie was posted as S.I. Police Station Sariab Quetta. He was informed by a duty Doctor that a shot-gun case of my area has been lodged. He proceeded to hospital and found Arshad Ali lying injured in the hospital. He prepared injury memo. He found that occurrence did not fall within his territorial jurisdiction. However, Mst. Anwar Sultana (mother of deceased) has lodged a report that her son has been injured by Sheikh Abdul Hameed. He went to the house of accused and called him. Accused came out alongwith shot-gun. He collected one empty cock/pad and brought the accused alongwith shot-gun to Police Station Sariab. Amir Jan, Naib Tehsildar came to Police Station and this witness handed over Sheikh Abdul Hameed, shot-gun 10 live cartridges and the cock/pad to Naib Tehsilder. The shot-gun had licence which was also given to Amir Jan, I.O. He had made a report in Roznamcha which he produced as Ex. P/7-A and he identified his signatures thereon. He prepared recovery memo. Fix. P/7-B and identified his signatures thereon. He also identified accused present in the Court, In cross-examination he stated that the cock/pad was found in front of the house of Abdul Hameed in Mdani (open place). PW-8 Abdul Latif prepared site plat and produced it as Ex. P/8-A. PW-7 Faizullah is a Levy Constable who accompanied Naib Tehsildar to Police Station and he was witness to Ex. P/7-B, Article P.I etc. PW-10 Akhtar Khattak was known to Arshad Ali deceased and had family relations. He has given details of the family background of Arshad Ali deceased. According to him one day Sheikh Abdul Hameed (accused) visited his house. There was a dispute of some money transaction and Sheikh Abdul Hameed claimed an amount of Rs. 30,000/- as fee or in lieu thereof mother of Arshad Ali should marry him.
He further stated that Sheikh Abdul Hameed said that if it was not accepted, he would kill Arshad Ali. The other day he went to inform Arshad Ali and his mother advising them to. File an application in the Court of Assistant Commissioner for obtaining peace securities. However, they did not agree to his suggestion. After when he heard that Arshad Ali has been injured, he went to the hospital. He found him in his senses, who disclosed about the incident and the fact that Sheikh Abdul Hameed had injured him with a shot-gun. On the next day he sought permission f/om Assistant Commissioner for taking the deceased without .Having post-mortem and lie produced permission as Ex. P/IO-A.
22. Sardar Amir Jan Somalani PW-ll investigated the matter. When Sariab Police informed Tehsildar about the incident. Tehsildar assigned him the duly of investigation, lie received the hand of Sheikh Abdul Hameed and also a Russian made shot-gun, single barrel alongwith l() live cartridges and a licence in the name of Sheikh Abdul Hameed and an empty cock/pad and prepared Pard Ex. P/7-B.
He identified his signatures on the same. He prepared parcel of the shot-gun and cock etc. As well as of cartridges'. He took the accused to Levies Headquarter, Quetta and started investigation.
Accused admitted that he has fired upon Arshad Ali. The Investigating Officer then left for hospital.
He saw Arshad Ali was admitted in Casuality Ward and was in his full senses, lie saw mother of the deceased as well as Saifuddin and Akhtar Khattak present there. He recorded the dying declaration Ex. P.I 1-A was made the basis of FIR and case was registered under Section 307, PPC.
23. He then proceeded to the spot, recorded statements etc. In the meanwhile accused was produced before Tehsildar as he expressed that he would be making a confessional statement. He was taken to the Court of EAC-I/City Magistrate, Quetta but Sheikh Abdul Hameed was not willing to give any confessional statement, therefore, he was sent to judicial custody. When he came to know that Arshad Ali has expired, he went to the hospital and confirmed his death. The case was converted from 307 to 302. PPC.
24. As against this prosecution evidence accused produced PW-1 Atiq-ur- Rehman. Who stated that although he married Mst. Anwar Sultana in December but later on divorced her and no child was born out of the wedlock. DW-2 Arbab Lai Muhammad produced Ex. D/2-A a mutation entry of some property in favour of Mst. Anwar Sultana. DW-3 Dr. Amin Mengal was produced in order to prove that Mst. Anwar Sultana had been admitted for treatment of poisoning. DW-4 Sadiq Ali brought copy of an order alongwith record Ex. D/4-AA. DW-5 Bashir Ahmed produced Ex. D/5-AA.
DW-6 Sarlraz Khan was Special Prosecutor in a case tried by Special Military Court where Sheikh Abdul Hameed was a defence counsel of Arshad Ali deceased and his mother. DW-7 Muhammad Aslam produced Ex. D/7-A. DW-9 Qadir Bakhsh tried to prove that Akhtar Khattak has remained in jail in connection with murder of deceased's father. DW-10 also deposed to the same effect. DW-11 Muhammad Saleem. Head Moharrar in Civil Lines Police Station ({posed about the previous murder of the father of Arshad Ali and arrested and recorded statement of accused persons in the former case. DW-12 Abdul Rehman produced record of some decided cases filed by Arshad Ali for succession etc. As well as statement of Mst. Anwar Sultana before Senior Civil Judge and DW-13 Humayun stated nothing in responde of present case.
25. After reproducing the gif of evidence of prosecution as well as of defence, it is proper time now to sift and re-assess the evidence.
26. As stated hereinabove, the prosecution produced 4 eye-witnesses who gave the ocular version.
PW-Anwar Sultana is the mother and PW-Zahid and PW- Amjad are brothers of the deceased Arshad Ali. The defence, therefore, mainly criticised their testimony firstly on the ground of relationship with the deceased contending that being interested witness their testimony should not be readily believed. In the first instance it may be observed that facts of each criminal case differ therefore, it is to be' seen in the context of entire evidence brought on record. Mere relationship per se does not render the evidence of such witness as inadmissible or untrustworthy, unless of course it is proved that the statements made by them were out of vengeance or some personal interest or ill-will. Apart front this while appraising evidence, the Court has to lake into consideration the cumulative affect of all other evidence and to adjudge the truthfulness or otherwise of such piece of evidence.
27. In the instant case, the prosecution version is that after taking morning tea, Arshad Ali after taking his motor-cycle set out to his duty and soon after the inmates of the house heard gun shot report. According to site plan the house of the accused is just near the house of the deceased, therefore, the inmates of the house in the natural course of events are the best witnesses of the incident. It is, therefore, wrong to conclude that their testimony be excluded from consideration simply for the reason that they were relatives of the deceased. It is now a settled rule of law that if the testimony of relatives is corroborated from circumstantial evidence or other pieces of evidence then their, testimony cannot be thrown out of consideration on the sole ground of relationship.
Reliance may be placed on 1994 SCMR 01 where the honourable Supreme Court observed; after surveying the law on the point, as under:- "An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir Vs. The State (PLD 1962 SC 269). In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating (he appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmed V.
The State (1976 SCMR 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses".
It is not a case of defence that PW-Zahid, PW-Anwar Sultana and PW-Amjad were residing with deceased Arshad Ali in the house in front of or in the vicinity of which the incident took place. Thus they were not chance witnesses. We are not impressed by the arguments of respondent's counsel that tha evidence of these witnesses should be out right rejected on the ground of relationship. We would be discussing at a proper stage of the judgment how ocular, version is corroborated from circumstantial evidence, but at present we deal with the second objection as agitated by the respondent's counsel.
28. The next objection was that there are material contradictions in the statements of these 3 eye- witnesses. While elaborating such contradictions, it was argued that these witnesses are not consistent as to who came out from the house first after hearing the gun shot. We are really not impressed by this argument for many reasons. The most important reason being that the accused who is an Advocate by profession made successive attempts to prolong the cross-examination of witnesses and very lengthy cross-examination was done in order to bring some omission on record or some petty contradiction from here or there.
29. Fran perusal of record it is revealed that PW-1 was examined on 10.9.1989. His cross-examination was postponed on the request of accused. However, he was re-called and re-cross-examined on 11.12.1989 and he was again called for cross-examination which concluded on 28.6.1993. Thus it almost took more than 3 years to conclude cross-examination of this witness. Similarly PW-2 Amjad, a boy of tender age, was examined on 5.5.1990 but his cross-examination was done on 20.4.1991. He was again re-called on 31.10.1991 when his cross-examination was concluded. Likewise PW-1 Anwar Sultana recorded her examination-in-chief on 2.6.1991 and her cross-examination was concluded on 30.10.1991.
30. In such state of affairs, minor contradictions in the statement of eyewitness shall not be material, particularly so when such testimony is otherwise fully corroborated by independent witnesses as well as circumstantial evidence, In this respect reliance may be made to the observations made by honourable Supreme Court in Criminal Appeal No. 268/1994 titled ' Sher Muhammad & others Vs. The State'. In para. 18 of the said judgment it was observed:- "Article. 140 of the Qanun-e-Shahadat envisages that a witness may be contradicted with his previous statement. There is no cavil on the proposition. The question is whether certain facts which had been brought on the record by the defence#himself through cross-examination could be equated with a previous statement. A bare reading of the above said two sections of the Criminal Procedure Code and Qanun-e-Shahadat will say no. It is not all, besides, the contradictions pointed out being of minor nature would not affect the material evidence of eye- witnesses".
Besides, the accused has made all efforts to prolong the case by making vexatious applications to the High Court almost on each and every hearing which is reflected from the record and even from observations made by the Trial Judge, In this connection first observation would be sufficient to be reproduced:- "Demeanour of the accused is hostile towards the Court. The case is referred to the Honourable High Court. Cross-closed". Not only that, but the accused while cross-examining the mother of deceased tried to provoke her by putting obscene and scandalous questions as for intance:-
(1) You cut down your lip vagina which was stitched?
(2) Your naked photographs are with Lal Muhammad Kakar of Kuchlak?
Now testing the ocular testimony we have found that these eye-witnesses have corroborated each other on all material points such as time of commission of the offence, the place f incident, the manner in which incident took place, the accused being found armed with a shot gun. In the circumstances minor contradictions as to who came out from the house first would be hardly material in the circumstances of the case. As far as sequence of events and the manner in which offence was committed, the testimony of these eye-witnesses is confidence inspiring, consistent, natural and convincing. Not only that the eye-witnesses have spoken the truth, but such truth comes out from the circumstantial evidence of recovery of a Russian Shot Gun licenced in the name of accused, recovery of cock/pad of the cartridge used, from the place of incident.
31. It will not be out of place here to mention the reasons upon which the learned trial Court did not rely on the statement of Anwar Sultana following contradictions were highlighted:- My deceased son had told me that it was 9.3 a.m. When he was going on duty. No body told me to state timings of 9.00 a.m. It was mentally upset therefore, some times I stated 9.00 a.m. And some times 9.30 a.m.
Zahid told me that there were many cartridges In your pocket.
I do not remember what was the colour of your clothes at the time of incident. The accused Was wearing Kamiz and Shalwar at that time.
I stated to Tehsildar that I told my second son to call Saifullah to fetch Suzuki of Maskeen (Confronted not so record).
Confronted my son Arshad Ali was seriously injured, my neighbourer Saifullah under semial consciousness took him to hospital in a Suzuki.
I stated to Tehsildar that sister of accused told me and my son to many (confronted not so recorded).
The sister of the accused told that to marry my deceased's son to the sister of the accused.
I stated so to Tehsildar (confronted not so record) Your sister did not say to deceased for marry.
You did not say to me for marriage.
I did not say to Tehsildar that you directly compelled me to marry.
I and my son Zahid went to Tehsildar to give statement.
It is correct that Akhtar Iqbal Khattak was also accompanied with us at that time.
You never directly teased me.
It is correct that I stated before the Court that I have no trust with Arshad.
There is a distance of 2000 feet between my house and that of the accused.
I cannot say how much was the distance between accused and that of my deceased son.
I cannot say whether the distance was 2000 feet, more than that or less than.
I alongwith my son Amjad and Maskeen accompanied the injured to hospital. Saifullah was also accompanying us.
Akhtar Khattak did pot accompany me to Tehsil Office.
A case was registered against me for murdering of my husband.
It is correct that Arshad and my brother was also accused in the said murder case, It is not correct that subsequently I married with Itemy-ur-Rehman.
After the death of my son I got the house transferred in my name as I intended to sell the said house.
It is correct that a suit for the recovery of fee was filed by the accused in the Court of Senior Civil Judge. Quetta.
It is incorrect that my deceased son had given a statement u/s. 164, Cr.P.C, that I murdered his father and my husband.
Similarly the statement of PW-Amjad has been rejected for contradictions in the statements which he gave before the Tehsildar. Although Tehsildar has not recorded his statement, but it was Naib Tehsildar who recorded his statement, It may be mentioned here that learned Trial Court not only erred in law to reject a consistent statement on, all material points of the 3 eye-witnesses but he has done so on extraneous considerations on flimsy and irrelevant grounds. We are conscious of the fact that in criminal justice benefit of doubt, if any, shall be given to the accused, but this does not entail that the Court should sit to highlight minor contradictions and to try to dislodge statement of a witness on mere technicalities.
32. Adverting now to the testimony of PW-5 who is related! To none of the parties it may be observed that he gave a very honest statement before the Court. PW- 5 deposed that he is resident of Killi Jeo Jadeed. He lives in the same vicinity about 2 furlongs from the house of deceased. According to him incident occurred on 0I.2.1989 at 9.00 a.m. He came out of his house on bicycle and reached the main road. He saw deceased came out from the house and when he attempted to ride on his motor-cycle he heard a gun shot tire. He clearly saw deceased fell down.
He also saw the accused came in Maidan (open place) having a gun in his hand. After 2/3 minutes accused attempted to make another fire but in the meanwhile 2 boys came out of the house of deceased and one of them caught hold of accused and the other went to the house of Saifullah.
He saw the injured in the lap of his mother. Saifullah shouted that his neighbour was killed by accused Wakil Sahib. Saifullah asked him to bring a vehicle to pick the injured. He alongwith Saifullah went to the house of Maskeen and reached the place of occurrence-where mother of deceased was shouting that his son was killed by Panjabi Wakil who was their neighbour. The injured was brought to hospital alongwith his mother, Maskeen and Saifullah. In cross-examination he made it clear that the deceased fell down and simultaneously boys came out of the house. His mother also came out at the same time.
33. This. Independent witness fully corroborates the other ocular testimony. He corroborates the place of incident, the time of incident. He saw the accused with shot gun coming to Maidan. He saw the injured fell down. He also saw the boys coming out of the house of PW-Zahid grappling with accused. Thus to no stretch of imagination, it can be inferred that this eye-witness is either interested or a chance witness. He is resident of the locality and was going to his duty. He saw the incident. It is indeed strange that learned trial Court also did not rely on this independent eyewitness on flimsy grounds and drew conclusions which are not only incorrect but are perverse on the face of it . As for instance the first reason why the statement of this witness was not relied is given as under by the trial Court:- "Strange enough that he is stranger and the parties were not known to him but PW-6 Dr.Abdul Satter disclosed the name of PW-5 Muhammad Rahim who brought the injured to civil hospital".
The learned Judge lost sight of the fact that PW-6 Dr. Abdul Sattar you to was on duty in Casuality should ask the name of the person who brought the injured and the witness must have told him his name. No cross-examination was done on this point by the defence. Thus this was not at all a ground to discredit the statement of an eyewitness. Secondly the ground prevailing with the trial Judge was that there are chain of authorities that delayed examination of witness by I.O. Was not believed. We do not know from where the learned Judge has concluded because in cross- examination he stated that the Naib-Tehsildar recorded his statement only after 3 days, In the peculiar circumstances of the case when the information was firstly given to Police and then handed over to Tehsildar or Naib-Tehsildar, this much delay does not render statement of this witness and particularly so when the accused died and the Naib- Tehsildar was busy in all other formalities.
34. Form the above discussion we un-hesitatingly hold that the prosecution, through ocular testimony successfully brought home the charge against the accused.
However, it was argued by respondent/accused that the ocular version is contradicted by medical testimony, therefore, it should be altogether ignored. Reliance was placed o the following authorities:-
(i) PLJ 1974 (Criminal Cases) Lahore 98;
(ii) PLD 1993 Karachi 347;
(iii) PLD 1988 Karachi 521; Astonishingly the learned trial Judge while elaborating this argument has gone astray because he indulged in elaborating difference between shot gun and gun shot in very detail which were not required at all. We failed to re-concile ourselves that there was at all any contradiction in the medical testimony and ocular version.
35. In cross-examination PW-6 Dr. Abdul Sattar stated that the injuries mentioned at Serial Nos. 2 & 3 are quite opposite. Furthermore these two injuries are by two different shots. Thus statement of the Doctor has been given a wrong interpretation by the trial Court and undue importance has been given to this contradiction. We have already reproduced 3 injuries received by the deceased.
In fact injury No. 1 and Injury No. 3 both are on back side. So also Injury No. 1 is on scapula, i. e. Flat triangular bone in the back of the shoulder; whereas Injury No.3 was gun shot entrance wound on lumbar region at the level of mid axillary line, i.e. The part of the back between thorax and pelvis and Injury No. 2 on right side of chest medial of two right nipples, i.e., pertaining to the middle line of the body or structure. Although in the first glance, it appears that fires were made from two different directions but from close scrutiny it becomes clear that all the wounds were as a result of one fire of a shot gun with several pellets. If we read the statement of the injured and statement of PW-5 this dilemma would be resolved. He stated as under:- {{Urdu Text}} Similarly PW-5 Muhammad Rahim stated as under:- {{Urdu Text}}
36. It is thus clear that the deceased was. Fired upon by the accused when he was on his motor- cycle. At the same time the accused had loudly asked him to stop and he simultaneously fired with a shot gun. It is known to us all that the cartridge of shot gun had many pellets. The deceased must have responded to the call and received all the pellets on right side of his body, even on the right nipple when he must have fully turned, therefore, this dilemmatic of one wound on the right nipple, that too on the right side, does not suggest that firing was made on him from two sides. Even otherwise in the circumstances of the case and evidence brought on record the presumption that accused must have been fired from two directions is hypothetical and baseless. The consequence of the wounds suggests that Injury No. 3 was caused and then Injury No. 1 and when he instantaneously turned to see the accused, he received injury on the chest.
As to the size of shot Doctor is not the Expert. He could depose only about injuries and not size of shots. Injuries may differ in size of the same shot if the angle is changed. Furthermore, no shots- were taken into possession or taken out of body of the deceased, therefore, to say that those differ in size is a hypothesis without any basis.
Besides,, in case of 'Saeedullah Khan Vs. The State', reported in 1986 SGMR 8023 the honourable Supreme Court observed on page 1031 as under.
"After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed. So far as Mueen Badshah is concerned, his presence at the scene of occurrence is corroborated by the fact that he was also injured with the fire weapon and it is difficult to hold that he was not present at the scene of occurrence, In the circumstances of this case when he was being killed by the successive shots which were being fired at him, it is not expected from him to describe with exactitude the details of the manner in which the deceased was injured,-however, his testimony that it was the accused who fired at the deceased cannot be rejected on that account. Similarly the complainant whose close relation was being attempted to be murdered in his presence, must be looking at the awful scene enacted in his presence with great amount of tension and confusion about the fate of the victim. Having regard to these circumstances the contradiction in the FIR and the Police version with the evidence in Court seem?
To pale into insignificance. As observed by the High Court, in the extract reproduced above, there can be no doubt about the presence of these witnesses at the time of occurrence and their testimony fully implicates the appellant".
Keeping the ratio decidendi of the above case we are of the opinion that the medical evidence does not contradict the ocular version and we cannot reject the ocular version on this ground, alone.
37. Another important piece of evidence is the dying declaration. It has come on record through testimony of PW-3 and PW-5 that the injured was shifted to hospital in the Suzuki of Maskeen. The Doctor PW-6 informed-the Police as it was a lego-medical case. The Sub-Inspector Sariab Police Station reached hospital and then proceeded to inspect the scene of occurrence. He arrested the accused alongwith the gun and obtained cock/pad but found that the place of occurrence was outside his territorial jurisdiction and was in the jurisdiction of Tehsildar Quetta. Hd? Therefore, informed the Tehsildar Quetta who assigned investigation to Naib Tehsildar. He came to the hospital and recorded statement of the injure&d.
38. The injured stated that accused and they are neighbours. He was arrested in case of murder of his father and while in Jail, he engaged Sheikh Abdul Hameed. Sheikh Abdul Hameed was paid a sum of Rs. 30,000/- as fee, but despite that he always used to demand for payment of Rs. 30,000/- more. Furthermore, he asked him to marry his sister, on refusal he used to extend threats to him. On 01.2.1989 in the morning at about 9.30 a.m when he came out of his house and when he was on motorcycle, the accused came out of his house and was having a shot gun in his hand and asked him to stop. Simultaneously, he fired as a result of which the injured received injuries. He made an attempt to re-load his gun but his younger brother Zahid grappled with him. His mother also was present there and their neighbour Saifullah brought his Suzuki and he was shifted to hospital.
39. The dying declaration was challenged by the accused on the ground that it has been recorded in presence of the mother and brother and there is every likelihood that they have tutored the injured against the accused. Reliance was placed on PLD 1970 SC 13. We have perused the judgment written by Mr. Justice Sajjad Ahmed Jan (as he then was) and while discussing Section 32 of Evidence Act read with Section 302, PPC following observations were made in respect of dying declaration:- "The dying declaration of the deceased have a degree of sanctity under the law, being the statement of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present' state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein, In this effort, the case has to be considered in all its ' physical environments and circumstances to find out how far the evidence or its different parts lit in with the circumstances and possibilities that can be safely deduced in the case, In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief, It is difficult to lay down a rigid rule that a person who is injured and is under-an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with-a clean conscience and a purity of mind to shed ail the age-old habits and deep rooted rancours and enmities".
Another case relied upon was 1994 SCMK 1852. In this case the honourable Supreme Court has observed that for proper evaluation of the dying declaration the surrounding circumstances in which the same were made and the contents thereof have to be kept in view. However, a specific observation was made on page 1855 which may be beneficial for our purposes: "To impart veracity to a dying declaration, it is necessary that the declarant should've free from external influence and not crowded around by unauthorized persons while making the statement.
The doctor admits that 5 of 6 persons were sitting around the deceased when she made the declaration. The record before us does not indicate that necessary steps were taken that no influence was brought abo flt on the deceased".
In the instant case when Nails Tehsildar went to the hospital to record statement of the injured at that time his mother Anwar Sultana and another person namely Saifullah as Well as Akhtar Khatlak were present. The question arises whether steps were taken- that no influence was brought about on the deceased while giving statement, It may be noted that when the injured received gun shot injuries, his mother took him into her lap and obviously she could not leave the company of her son who was injured. PW-Saifullah's presence is a natural because he was the neighbour who arranged for a vehicle to shift the injured to hospital. However, as far as Akhtar Khattak is concerned he is a Police Officer having family relations with the deceased party'. He had no motive to influence the injured or to wrongly implicate the present accused.
40. The dying declaration Finds corroboration from the recovery of shot gun, licence in the name of the accused, the statements of the eye-witnesses and medical evidence that the deceased was fired at with a shot gun. There was no suggestion put to the Doctor that the accused was not in his senses, when his statement was recorded.
PW-5 Rahim Baloch testified about the incident and his statement also corroborates the dying declaration.
41. Although in law no bar has been imposed to the manner in which a dying declaration is recorded nor there is any provision suggesting that the same would be inadmissible in evidence if the declaration is made in presence of relations or other persons present. But the superior Courts and the honourable Supreme Court have laid down certain principles in order to minimise any chances of padding or false implication of an innocent person. However, facts of each case differ and it is for the Courts to take into consideration the attending circumstances and to draw conclusions from the evidence so brought on record.
Thus we find no reason to disbelieve dying declaration in the circumstances of the case.
42. The recovery of shot gun has not been seriously challenged because it was the accused himself who at the time of arrest produced it before PW-7 Akram, S.I. Sariab Police Station. Not only he produced gun but also the licence. However, an argument was raised that this gun. Alongwith licence, were recovered-during search of the house by Police. No evidence was produced that Police has ever made any search of the accused's house. The case of the prosecution, on the contrary, is that when S.I. Akram went to the place of occurrence, he called for the accused who came out alongwith his shot gun as well as licence. Prosecution version is more confidence inspiring on the point because there was no occasion for police to search the house when me accused had yet not been arrested. When PW-Akram deposed about the recovery of shot gun, cartridge and licence from the accused, he was not at all suggested by the accused that the gun had been recovered during search of .The house.
43. Be that as it may the shot gun recovered belongs to the accused as it is licenced in his name.
Another objection raised by the accused was that the shot gun has not been sent to balletic expert, therefore, its recovery is of no consequence, It may be noted that this argument has no force because empty cartridge has not been found and I.O. Stated that accused informed him that he had burnt it therefore, there was no point to send the shotgun for examination of the balletic expert.
44. About the remaining recoveries our attention was drawn to certain cuttings of dates on Recovery Memo, which we think are not material as rightly explained by Naib Tehsildar in his statement.
45. In the dying declaration as well as in the statement of the eye-witnesses it has come on record that the motive to kill was that the accused Sheikh Abdul Hameed had been engaged by the deceased who had made a payment of Rs. 30000/- to him but the accused still insisted for making payment of Rs. 30000/-. Also that Sheikh Abdul Hameed wanted that brother of accused should marry his sister but Arshad Ali declined. As to dispute over Rs. 30000/- PW-Akhtar Khattak, statement of injured, statement of PW-Anwar Sultana and Zahid all corroborate each other. So much so that accused in his statement recorded under Section 342, Cr.P.C, in reply to this as follows:- "Factually it was not a dispute but the deceased agreed to pay the amount and a stamp paper and protone was also written in this regard and the said amount subsequently decreed".
Thus the motive is proved as the deceased had not paid Rs. 30000/- to the accused, who in a dubious. Manner obtained a pronoted as fee which is indeed unheard of, of an advocate.
46. In defence the accused tried to prove that PW-Anwar Sultana was a lady of loose character who made an attempt to commit suicide. In this regard he produced DW.I, DW-2 and DW-3. All the remaining witnesses deposed about the previous murder of Qutab Khan and involvement of Anwar Sultana etc. The evidence at the most may cast some doubt on the character of Anwar Sultana but as far as Arshad Ali and Zahid, there is nothing to doubt their veracity on any ground. Besides. PW-5 Rahim Baloch was an independent witness who fully corroborated igitur version.
47. It is penitent to mention here that learned trial Court has made an observation that Tehsildar or Naib Tehsildar had no jurisdiction under Cr.P.C, to conduct investigation, It may be noted that areas of investigation have been divided into 'A' & TV since very long and the Police has been conducting investigation in this part of the country only, in 'A' areas; whereas the Tehsildar. Naib Tehsildar as incharge of levies have been responsible for conducting investigation in TV areas. A specific provision for investigation by Levies had been made in the Criminal Iaw (Special Provisions)
Ordinance. II of 1968 which law . Was declared void being violative of the Constitution. But the areas of investigation are still divided into 'A' & T.V areas and it requires time and money to make alternate' arrangement for introducing police in all the areas. However, till such arrangements are made Courts would not create a vacum to the prevalent practice of investigation which is carried out by Naib Tehsildar alongwith Levies.
48. From the above discussion we have come to the conclusion that the prosecution brought sufficient evidence and proved the charge to the hilt against the accused by producing ocular evidence dying declaration, recovery of incriminating articles and circumstantial evidence. The conclusions drawn by the trial Court are uncalled for and perverse. The judgment of the Sessions Judge dated 14.2.1995 is, therefore, set aside and in view of overwhelming evidence the accused is found guilty for an offence under Section 3G2. PPC. However, keeping in view the circumstances of the case we convict the accused under Section 302 (b) PPC. He is sentenced to suffer imprisonment for life. He shall be arrested and confined .In Central Jail Mach to undergo the sentence. He is also given benefit of Section 382 (b), Cr.P.C. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.