' JAWAID NAWAZ KHAN GANDAPUR, J.--- This appeal, filed by Gul Nawaz accused appellant, is directed against the order of Special Judge, Lakki (Mr. Abdur Rehman Khan, Sessions Judge), dated 7-9-1996 by which he convicted the appellant under section 302/34, P.P.C., on two counts, and sentenced him to death (to be hanged by the neck till he be dead) for killing Asmatullah and Fida Muhammad.
2. Additionally the trial Judge convicted the appellant under section 302/34, P.P.C. In respect of the murder of Amir Hatim and accordingly sentenced him to life imprisonment. The appellant was further directed to pay a fine of Rs,50,000 or in default thereof to undergo S.I. For 5 years. It was also ordered that in case of the recovery of the fine, 2/3rd of the amount would be paid to the heirs of the deceased as compensation.
3. Murder Reference (No, 3 of 1996) has also been put up to us for confirmation.
4. Since the appeal and the murder reference are inter-linked, therefore, I propose to dispose of the two by this single judgment.
5. The facts of the case, stated briefly, are that Amir Hatim, in order to settle an old blood-feud between Asmatullah and Fida Muhammad, on the one hand and the appellant and his brother (absconding accused), on the other hand, arranged for a meeting for reconciliation between them to be held at his Baithak situated in village Kheru Khel. Both the parties had to assemble there at about Digar Wella on 9-2-1991. On the eventful day, Asmatullah, alongwith his two nephews namely, Fida Muhammad and Taj Muhammad (P.W.8), went to the Baithak of Amir Hatim at the appointed time. They were all sitting inside the Baithak alongwith Amir Hatim and waiting for the accused party, when in the meantime Taj Muhammad Khan (P.W.8) aged about 16/17 years, was directed by his uncle and brother to leave them alone and to go and wait outside as they wanted to discuss something in private. Taj Muhammad Khan obliged and went out and sat there on a Charpai.
6. It was thereafter that Gul Nawaz (appellant) alongwith his brother Shamal Khan (absconding accused), duly armed with lethal weapons (klashnikov), and reached there. The appellant and his brother, without wasting any time, and in furtherance of their common intention, while standing in the door of the Baithak opened indiscriminate firing at Asmatullah Khan, Fida Muhammad and Amir Hatim. All the three persons were resultantly killed. The appellant allegedly killed Asmatullah and Fida Muhammad whereas Shamal Khan is alleged to have killed Amir Hatim, an innocent person. Both the accused, after accomplishing their task, decamped from the scene of occurrence.
7. Taj Muhammad Khan (P.W.8), after having seen his uncle and brother killed rushed to his house to inform his relatives about the unfortunate incident. Immediately after that he went to the main road to hire Datsun Pick-up in order to take the dead bodies of his brother, uncle and Amir Hatim to the police station/Hospital. However, he failed to find any and after waiting for some time, ran back to the Baithak where the dead bodies were lying. He was there when the police party, headed by Sub-Inspector, Naik Nawaz (P.W.9) Investigating Officer arrived. Taj Muhammad Khan narrated the occurrence to him. His report was reduced into writing by Sub-Inspector, Naik Nawaz Khan in the form of Murasila (Exh.P.A./1). The same was read over and explained to him who, after hearing and admitting the same to be correct, signed the same. The Murasila was despatched to Police Station Ghazni Khel where, on its basis, F.I.R. No,17 of 1991 (Exh.P.A.) was duly registered by A.S.-I. Bakht Jamal Khan (P.W.2).
8. The Investigating Officer prepared the injury sheets (Exh.P.W.1/3 to Exh.P.W.1 /8) and inquest reports (Exh.P.W.1 /11 and Exh.P.W.1 /12) in respect of the three dead persons. The dead bodies were thereafter despatched to the mortuary under the escort of F.C. Abdur Rahim (P.W.5). The Investigating Officer also prepared the site-plan (Exh.P.B.) at the pointation of complainant Taj Muhammad Khan. During the course of spot inspection he recovered 5 empties of 7.62 bore and took the same into his possession vide recovery memo. ExhP.W.3/2 and sealed the same into a parcel alongwith spent bullets recovered from inside wall of the Baithak. The Investigating Officer also took into his possession blood-stained earth, from three different places, where the dead bodies were lying. He sealed the same into a parcel vide recovery memo.
' Exh.P.W.3/1. The clothes of the three deceased, containing cut marks, when brought from the hospital, were also taken into possession by the Investigating Officer.
9. At the mortuary an autopsy was conducted on the dead body of Asmatullah by Dr. Muhammad Aslam Khan, Medical Officer, Civil Hospital, Lakki (P.W.1) on 10-2-1991 at 9-45 a.m. Who prepared the post-mortem report (Exh.P.W.1/1) in this respect. On examination he found the following:-- External:
(i) One entrance wound of fire-arm on the postero lateral part on the right side, five inches inferior to the right iliac crest, and 1-1/2 inches posterior to mid axillary line, size half c.m. 1 x half c.m.
(ii) One exit wound of fire-arm on the postero lateral part of right hip two inches below the right iliac crest, size 1 c.m. x 1 c.m.
(iii) One entrance wound of fire-arm on the right lateral part of the abdomen, one inch above the right iliac crest, size 1/2 c.m. x 1/2 c.m. Cavity deep.
(iv) One exit wound on right lateral part of thorax in the posterior axillary line 4 inches below of axilla, size 1 c.m. x 1 c.m.
(v) One entrance wound of fire-arm on right posterio lateral part of neck, three and half inch infero posterior to the right ear, six 1/2 c.m. 1/2 c.m.
(vi) One exit wound of fire-arm on the back of right half of thorax, 5 inches medial to the posterior axillary line, and 6 inches below the inferior angle of right scapula, size 1 c.m. x 1 c.m.
(vii) One entrance wound of fire-arm on the left lateral part of thorax in the posterior axillary line 2" below the axilla size 1/2 c.m. x 1/2 c.m., cavity deep; (viii)One exit wound on the back of left half of thorax situation one inch below the inferior angle of left scapula, size 1 c.m. x 1 c.m.
Internal Thorax wall, right and left pleura, right and left lung abdominal wall, peritoneum diaphragm, small and large intestines and liver were all found injured. Stomach was found healthy and full of juices.
Thorax ribs were laterally fractured.
11. In the opinion of the doctor death was caused because of the injuries to ' the vital organs like lungs, liver, intestines, diaphragm, peritoneum, leading to massive haemorrhage, shock and death.
12. According to him, the probable time between the injury and death was about 1 to 10 minutes whereas the time between the death and post-mortem examination was about 16 to 17 hours.
13. The said doctor also examined the dead body of Amir Hatim (deceased) on the same day at 9- 30 a.m.
14. On external examination he found the following injuries:--
(i) One entrance wound of fire-arm on the left side of the head situated 4" above the outer can thus of left eye skin muscle and bone deep, size 1" x 1.
(ii) One exit fire-arm wound on left side of the head, three inches above the left ear and one inch lateral to wound No,1, size 3" x 3". Brain protruding out.
15. On internal examination, the scalp, skull, brain were found to be fractured/injured. Left vertex and left temporal bone were also found fractured.
16. According to the doctor (P.W.1) death was the result of injuries to vital organs like brain, meninges, skull bone, leading to perfused haemorrhage and shock.
17. Probable time between injury and death was found to be about 15 minutes. While that of death and post-mortem examination (Exh.P.W.1/4) was 16/17 hours.
18. The dead body of Fida Muhammad (deceased) was also examined, on the same day at 9-15 a.m. (Exh.P.W.1/5) by Dr. Muhammad Aslam Khan, Medical Officer. On external examination he noticed the following injuries:--
(i) One entrance wound of fire-arm on the left of the neck 3 or 4 inches lateral to mid line and two inches above left clavical, size 1" x 1".
(ii) One graze wound of fire-arm on left side of neck situated half inch above wound No,1 and 1-1/2" lateral to mid line, size 1/4" x 1/4".
(iii) One graze wound of fire-arm on the left side of neck situated one inch above wound No,2 and two inches lateral to mid line, size 1/4" x 1/4".
(iv) One exit wound on the back of right shoulder situated four inches infero medial to right shoulder joint, size 1-1/2" x 1-1/2".
19. On internal examination, posterior wall of right side of thorax, right pleura, right lung, trachea and left carotid were found to be injured while the right scapula was found fractured.
20. In the doctor's opinion death was caused as a result of injuries to the vital organs. Probable time between injury and death was found to be 6 to 15 minutes and that between death and post- mortem examination was 16/17 hours.
21. After the completion of the usual police investigations complete challan was submitted against the appellant (as the other accused had absconded) in the Court of Special Court (Sessions Judge) Lakki Marwat, for trial.
22. The charge against him was framed on 2-4-1995, which was read over and explained to him.
The appellant pleaded not guilty, professed innocence and claimed trial.
23. In order to establish its case, the prosecution, at the trial, produced and examined the following witnesses:-- ' P.W.1 Dr. Muhammad Aslam Khan, Medical Officer, Lakki.
' P.W.2 Bakht Jamal Khan, A.S.-I.
' P.W.3 Hamidullah Khan son of Gul Dad resident of Kheru Khel Pacca. P.W.4 Yousaf Khan F.C. No,286 and P.P.
' P.W.5 Abdur Rahim Khan son of Muhammad Din resident of Daulat Khel. P.W.6 Salamat Khan F.C.
No,58 Police Station Pezu.
' P.W.7 Noor Aslam Khan son of Gul Nabi resident of Kheru Khel Pacca, Tehsil and District Lakki Marwat.
' P.W.8 Taj Muhammad Khan, complainant. P.W.9 Nek Nawaz Khan, S.H.O. And P.P.
24. F.C. Muhammad Yousaf Khan was examined as search witness (S.W.1) he was entrusted with warrants under section 204, Cr.P.C. Issued against Shamal Khan, the absconding accused. S.W.1 searched Shamal Khan in his village as well as in the surrounding villages. However, in order to avoid his arrest, Shamal Khan, had gone into hiding. The warrants could not be executed and were accordingly returned by S.W.1, alongwith his report. Exh.S.W.1/1. The said F.C. Was also entrusted with proclamation issued against the absconding accused under section 87, Cr.P.C. Which, too, was returned unserved alongwith his report (Exh.S.W.1/2). Resultantly, the trial Court proceeded against the absconding accused under section 512, Cr.P.C.
25. When P.C. Salamat Khan delivered the Murasila (Exh.P.A./1) to A.S.-I. Bakht Jamal (P.W.2) at Police Station Ghazni Khel. On its basis, F.I.R., Exh.P.A. Was duly registered.
26. In the presence of Hamidullah Khan (P.W.3) son of Gul Dad, aged about 55- years, resident of Khero Khel Pacca, an independent public witness, the Investigating Officer took into his possession five empties of 7.62 bore (Exh.P.9) and spent bullet (Exh.P.10) vide recovery memo. Exh.P.W.3/1. The recovery memo. Was duly signed by P.W.3 as one of its marginal witness.
27. F.C. Abdur Rahim Khan (P.W.5) had escorted the dead bodies of the three deceased from the place of occurrence to Civil Hospital, Lakki. Later, the post-mortem reports, handed over to him by the doctor, were passed on to the Investigating Officer.
28. Noor Aslam Khan son of Gul Nabi, aged about 35/36 years, resident of Khero Khel Pacca (P.W.7) identified the three dead bodies at the time of postmortem examination conducted by the doctor at the mortuary.
29. F.C. 58 Salamat Khan (P.W.6) had witnessed the recovery memo. (Exh.P.W.6/1) vide which the Investigating Officer (P.W.9) took into his possession the clothes (Exh.P.1) to Exh.P.8) of the three deceased.
30. The prosecution evidence was closed on 27-11-1996. It was on 4-3-1996 that Gul Nawaz (appellant) was examined under section 342, Cr.P.C. He claimed to be innocent and falsely charged. He further alleged that the prosecution case was fabricated and that the complainant (P.W.8) was planted as an eye-witness. He, however, refused to produce any evidence in his defence. Similarly he refused to be examined, on oath, under section 340(2), Cr.P.C. As his own witness.
31. Syed Zafar Abbas Zaidi, Advocate, learned counsel for the appellant, Syed Hussain Sherazi, learned Assistant Advocate-General, for the State and Mr. Shehr Yar Khan, Advocate, learned counsel for the complainant, present and heard. I have also gone through the record of the case carefully with the assistance of the learned counsel for the parties.
32. In the main, the findings of the trial Court have been challenged by the learned counsel for the appellant, inter alia, on the following grounds:--
(i) that there is an inordinate delay in lodging the F.I.R. Which has not been prdperly explained. The fact that the report was lodged at the spot, when the Investigating Officer arrived there, would suggest that the report was prepared after due deliberations and consultations;
(ii) that the prosecution case rests solely on the testimony of a solitary witness, Taj Muhammad Khan, who is an interested witness as he is the real brother of the deceased Fida Muhammad and the nephew of the other deceased, Asmatullah that there being blood feud between the parties his statement could not be relied upon safely; and
(iii) that the sole eye-witness has made improvements in his statement which is full of the contradictions and, therefore, his testimony is not confidence inspiring and liable to be discarded.
33. Before entering upon the merits of the case I would like to remark that the evidence of the P.Ws.
Was not properly recorded. It not only contains spelling mistakes but also contains sentences which do not convey proper meaning.
34. The Registrar of this Court is, therefore, directed to issue necessary instructions with the approval of the Honourable Chief Justice, to all the subordinate Judges in the N.-W.F.P. To ensure that after dictating the statements of P.Ws./D.Ws., if any, and the statement of the accused recorded under section 342, Cr.P.C. Etc., the same should be read carefully and corrected before being signed.
35. In the first instance, the learned counsel for the appellant submitted that the F.I.R. Was not promptly lodged and that the inordinate-delay has not been plausibly explained. In this respect he drew my attention to the fact that the occurrence, as alleged, took place at about "Digar Wella"
(between 4-00 p.m. And 5-00 p.m.) whereas the matter was reported to the Investigating Officer when he arrived at the scene of occurrence at about 8-15 p.m. He also pointed out that A.S.-I. Bakht Jamal Khan (P.W.2), the then I.H.C. Police Station Ghazni Khel, who had recorded the F.I.R., had not only contradicted the Investigating Officer (P.W.9) but also the complainant (P.W.8) inasmuch as according to him, he had received the Murasila at "Digar Wella" through F.C. Salamat (P.W.6).
According to the learned counsel for the appellant this fact alone had made the entire prosecution case highly doubtful and that, therefore, the trial Judge was not justified in convicting the appellant. I am, however, unable to agree with the contention of the learned counsel for the appellant inasmuch as the complainant (P.W.8), while in the witness-box, was never cross- examined on this point i,e,, that he had lodged the report with the police at Digar Wella.
Interestingly, the Investigating Officer (P.W.9) was also not cross-examined on this score. It may be mentioned here that the Investigating Officer in his cross-examination had categorically stated:- "After recording the report of complainant, examination of the dead bodies and the inquest report of all the three deceased I sent the Murasila to the police station for the registration of the case."
36. Similarly, even F.C. Salamat (P.W.6) was not cross-examined regarding the fact that he had delivered the Murasila to I.H.C. Bakht Jamal Khan (P.W.2) in the police station at "Digar WeIla".
37. The prosecution version, on the other hand, is that immediately after the occurrence Taj Muhammad (P.W.8) rushed to his house to inform his relatives about the horrible incident.
Thereafter, he went to the road side to hire a Datsun Pick-up for transporting the dead bodies to the police station/hospital but could not find one. Resultantly, he rushed back to the scene of occurrence where the dead bodies of the three deceased were lying. It was then that the police party, headed by the Investigating Officer (P.W.9), arrived there and the complainant (P.W.8) narrated the unfortunate incident to him. The complainant's report was accordingly reduced into writing, in the form of Murasila (Exh.P.A./1) and then despatched to the police station, through F.C.
Salamat (P.W.6) where, on its basis, F.I.R. (Exh.P.A.) was duly registered under section 302/34, P.P.C.
38. With regard to the statement of A.S.-I. Bakht Jamal Khan (P.W.2) that he had received the Murasila at Digar Wella, from Salamat (P.W.6) it would be sufficient to say that he had done so deliberately/intentionally so as to extend some concession to the accused. Since the version of P.W.2 has neither been supported by F.C. Salamat Khan (P.W.6) nor by any other evidence, therefore, the same is discarded to this extent. Besides, the very fact that the F.I.R. Was registered by P.W.2 at 21-15 hours at the police station, would belie his version that he had received the Murasila at Digar Wella. If P.W.2 had received the Murasila at Digar Wella then I fail to understand.
As to what had prevented him from registering the F.I.R. Immediately. Further no explanation is forthcoming as to why he had deferred the matter of recording the F.I.R. Till 21-15 hours.
39. It is an admitted fact that during the days of occurrence the Digar prayer were offered between 4-00 p.m. And 5-00 p.m. According to Taj Muhammad Khan complainant (P.W.8), he, alongwith his brother, Fida Muhammad deceased and uncle Asmatullah deceased, after offering the prayers, went to the Baithak of Amir Hatim (deceased). They sat there for sometime, when he (P.W.8) was asked to leave the Baithak and wait outside. P.W.8 complied with the direction and went out. It was then that the two accused arrived there. In the circumstances it can be safely concluded that the accused had arrived at the scene of occurrence at about 5-00 p.m. On their arrival both the accused started firing with their klashnikovs and killed three persons in furtherance of their common intention. The complainant, Taj Muhammad Khan (P.W.8), was faced with a grave situation. His real brother as well as his real uncle had been killed. He had himself escaped death because the accused had not noticed his presence otherwise he would not have been spared. The complainant, being a young boy of 16/17 years of age, had no knowledge of intricacies involved in delaying the lodging of the report. After the killing he rushed to his house to inform the inmates about the unfortunate occurrence. This conduct of the complainant (P.W.8), in the circumstances, is most natural. He must have consumed some time in the process. Thereafter, he went to the road side to hire a pick-up. His assertion that he could not find a Datsun also appears to be quite genuine. At odd hours and at a place where three persons had been killed nobody could dare/or be prepared to take the risk of playing even a nominal role. It is common knowledge that everybody avoids such situations. So, the young boy (P.W.8), finding no vehicle for transporting the dead bodies of the three persons to the police station, returned to the scene of occurrence.
40. Admittedly, the Investigating Officer Naik Nawaz Khan (P.W.9) was on routine "Gasht" of the Ilaqa on the eventful day and was present in village Ghazni Khel, when at about 7-30 p.m. He was informed about the occurrence. He, therefore, rushed to the place of occurrence. On reaching there he met Taj Muhammad Khan (P.W.8) who reported the incident to him. The report was reduced into writing in the form of Murasila by the Investigating Officer (P.W.9) and then sent to the police station where the F.I.R. Was registered.
41. It was next contended that except in his statement recorded during the trial, Taj Muhammad Khan (P.W.8) nowhere gave the details as to why there was delay in lodging the report. Admittedly, in his report or in his supplementary statement, the details, which led to the delay in lodging the report, have not been given but it is a matter of common knowledge that it is not at all mandatory that each and every detail must be given in the Murasila/F.I.R. Which, of course, is not a substantive piece of evidence. However, the fact, that the Investigating Officer, Naik Nawaz (P.W.9), after receipt of the information regarding the occurrence, had reached the scene of occurrence, within half an hour, cannot be lost sight of. According to him (P.W.9) the Murasila was recorded by him at about 8-15 p.m., therefore, it would suggest that he (P.W.9) had received the information at about 7-30 p.m. Keeping in view the distance between the place where the Investigating Officer (P.W.9) was present, at the relevant time, and the place where the occurrence took place, it can be safely concluded that he reached there within half an hour. On the other hand, the time consumed by Taj Muhammad Khan (P.W.8) in informing the inmates of his house, his efforts to fetch a Datsun for the transportation of the dead bodies and his return to scene of occurrence, all taken together, would indicate that the time of occurrence as alleged by him cannot be doubted. This also explains as to why the lodging of the report was delayed.
42. additionally, the injuries found on the person of the three deceased also support the version of Taj Muhammad complainant (P.W.8). In my opinion, in the circumstances of this case, the delay in lodging the F.I.R. Has been, therefore, competently and satisfactorily explained. Needless to mention that this witness (P.W.8) has been quite consistent on all the material points.
43. The learned counsel for the accused-appellant next contended that in the case in hand, the eye-witness account has only been furnished by complainant Taj. Muhammad Khan (P.W.8) who happens to be the real brother of Fida Muhammad (deceased) and the nephew of Asmatullah (deceased). Since he is the only eye-witness, therefore, I am of the considered view that his evidence requires to be subjected to close and critical scrutiny/analysis.
44. It may be noted that the perusal of the site plan (Exh.P.B.) would reveal that deceased Fida Muhammad was sitting on Charpai at point No,1, whereas deceased Asmatullah and deceased Amir Hatim were sitting on other "Charpais" at point No,2 and point No,3 respectively. While in the witness-box Taj Muhammad Khan complainant (P.W.8) stated on oath, that appellant Gul Nawaz, while standing in the door of the Baithak, fired at his brother Fida Muhammad (deceased) and uncle Asmatullah (deceased) whereas the absconding accused (Shamal Khan) fired at Amir Hatim (deceased) with their klashnikovs. The number of the entrance wounds and grazed wounds, found on the dead bodies of all the three deceased were eight. This fact, therefore, fully supports/corroborates the version of the complainant that the two accused had fired many shots at the deceased. The complainant, a young boy of 15/16 years, had categorically stated that the two accused had fired a burst each at the three deceased. His assertion is also supported fully by the post-mortem reports.
45. According to the prosecution version all the three persons, who were killed, had assembled in the Baithak of Amir Hatim, deceased, so as to settle the dispute between the two deceased and the accused party. While the three deceased were waiting for the arrival of the accused party inside the Baithak, the complainant, Taj Muhammad Khan (P.W.8) was sitting outside the said Baithak. It was then that the two accused, namely Gul Nawaz appellant and Shamal Khan (absconding accused) arrived there and, while standing in the door of the Baithak, fired indiscriminately at the three deceased with their lethal weapons (klashnikovs) and killed all three of them on the spot.
46. During the spot inspection the Investigating Officer (P.W.9) recovered five empty shells of 7.62 bore. The Investigating Officer also recovered bloodstained earth from the places at which the three deceased were sitting and later killed. Thus, the version of the sole eye-witness, Taj Muhammad Khan (P.W.8), stands fully corroborated by the site plan and post-mortem report with regard to:--
(a) the place and the time of occurrence;
(b) the manner in which the three deceased were killed; and
(c) the weapons with which the appellant had killed the three deceased.
47. The learned counsel for the appellant vehemently argued that according to Taj Muhammad Khan (P.W.8) the two accused had fired a burst each at the deceased. However, from the spot inspection only five empties shells and two spent bullets were recovered by the Investigating Officer. He submitted that this fact would belie the assertion of the complainant regarding the firing of the bursts. According to him, since klashnikovs were allegedly used for the commission of the crime, therefore, lot of empty shells should have been recovered from the spot. That the, recovery of 5 empties only from the spot, therefore, did not support/corroborate the version of the complainant because if his statement is taken to be correct then in that case the number of empty shells/spent bullets recovered from the spot should have been much more. In my opinion the contention of the learned counsel for the appellant is not only incorrect but is also misconceived.
Firing a burst would not mean that 20/25 bullets had to be fired by each accused. By using the word "burst" the complainant (P.W.8) meant that the appellant/the absconding accused had fired a volley of shots, may be 4/5 shots each.
48. The fact that the three deceased were killed in the Baithak of Amir Hatim deceased, the recovery of 7.62 bore empty shells/spent bullets and the recovery of blood-stained earth from inside the said Baithak, led more than sufficient corroboration to the version advanced by Taj Muhammad Khan (P.W.8). It was indeed for this reason that the trial Judge in his impugned judgment (Page 42 of the print book) had observed and correctly so:-- "Here in the instant case when the ocular version of complainant given in the Murasila is to be scrutinized alongwith other material circumstances of the case either external or internal, it appears that complainant has given a complete satisfactory version about his presence alongwith the deceased at the relevant time of occurrence on the spot, and there is no material doubt into the same on the basis of which it can be presumed even for the sake of arguments that presence of complainant on the spot at the relevant time is either not proved or appears to be doubtful. The complainant was a young boy, the occurrence was taken place in the year 1991, he was first examined by the Court of learned Additional Sessions Judge, Lakki as P.W.8 on 16-2-1994 and thereafter, before this Court as P.W.8 on 2-11-1995 both the time his veracity was testified with the able and long cross-examination by the defence but nothing favourable to accused has come forth from his mouth. He has not made any material confrontation on both the time with his version given in the F.I.R. Despite the fact that he was a young boy at the time of occurrence and was cross-examined-by the defence after the lapse of five years of the occurrence. He confidently and satisfactorily faced the cross-examination and has given satisfactory explanation to each and every question without making any departure or improvements."
49. In case Gul Nawaz v. State reported as 1968 SCMR 1168, a Full Bench of the Honourable Supreme Court, consisting of his Lordships Mr. Justice S.A. Rahman, C.J. Mr. Justice Fazle Akbar, Mr. Justice Hamoodur Rahman, Mr. Justice Muhammad Yaqub Ali and Mr. Justice Sajjad Ahmad, JJ. Had observed:-- "In the circumstances, we are clearly of the opinion that Faizullah Khan and Mian Shakirullah Jan, JJ., werewrong in disregarding the criticism made by the learned Additional Sessions Judge, of the prosecution evidence adduced in this case. It should have been remembered that the appreciation of evidence made by the trial Court must always be given due weight and importance, for, that Court has the advantage of not only hearing the evidence but also observing the demeanour of the witnesses deposing before it. Its judgment of the credibility of a witness is not to be lightly discarded, particularly, where such judgment is supported by cogent and substantial reasons."
(Note: The underlining is mine)
50. Since in the case in hand the version given by Taj Muhammad ICnan (P.W.8) is fully corroborated by other evidence such as the site plan, recoveries, post-mortem report, the time of occurrence etc., on almost all the material points, coupled with the observation of the trial Judge regarding his (P.W.8) credibility and character, there hardly exists any reason to discard his testimony, just because he is closely related to the two deceased. In this respect I am also fortified by a decision of the Full Bench of the Honourable Supreme Court in case Abdul Majeed v. The State reported as 1969 SCMR 437, wherein it was observed/held as under:-- ' The defence was' one of false implication due to enmity, but no evidence was led. The trial Court accepted the evidence for the prosecution and convicted and sentenced the appellant and four other accused. In appeal it was contended before the High Court that as the eye-witnesses were not only related to the deceased, but were on terms of bitter enmity with the appellant the other accused and the absconder, the evidence of Saifal and Ganjoo, though their presence at the occurrence could not be doubted, should not be acted upon unless it was corroborated, and for this, reliance was placed on the decision of the Chief Court of Sindh in Janu Khair Muhammad and others v. The Crown ILR 1943 Kar.
148. The learned Judge accepted this contention observing that on applying the principle of this decision to the facts of the present case, they found that the other four accused were entitled to an acquittal, as the evidence against them was not corroborated. They,, therefore, acquitted those accused, but confirmed the convictions of the appellant because they found that the evidence was corroborated as far as he was concerned by the opinion of the expert referred to above. When the appeal first came on for hearing before us it was argued by Mr. Muhammad Ali for the appellant that the evidence on record did not establish the safe custody of the crime shells from the time of their recovery till they reached the Forensic Science Laboratory and that the' two live cartridges that were seized from the appellant had mysteriously disappeared. Reliance in this connection was placed on the evidence of the Assistant Sub-Inspector, Ijaz Ali that he did not seal the packet containing empty shells at the time of recovery. Reference was also made to the fact that the statements recorded from the injured witnesses by the Magistrate had also mysteriously disappeared.
' As the conviction by the High Court was based mainly on the corroborative evidence afforded by the Expert we considered it necessary to take additional evidence with regard to the actual custody of the crime shells between the time of their recovery and their reaching the Expert's office.
Ijaz Ali the Assistant Sub-Inspector of police, who seized these shells as well as his Muharrir who placed the articles in the Malkhana and a Head Constable of the Jacobabad Police Station who took the parcel to the Expert, were examined. Their evidence was to the effect that the practice followed in Sindh, before the Punjab Police Rules were made applicable, was to bring the articles recovered from the scene and deposit them in the Malkhana by tying them in a bundle and affixing to it a label containing the number of the case and putting the same into a sealed box and that it was only when sending them to the Expert that they were packed and sealed, that this practice was followed in this case and that the crime shells were kept in the Malkhana in a packet on which the number of the case was noted and under the orders of the Superintendent of Police those shells were put into a sealed packet and were sent alongwith four test live cartridges purchased from the bazar which, however, were not sealed.
Even apart from this evidence, we consider that the version of the eyewitnesses particularly of Saifal and Ganioo who sustained serious gunshots wounds could safely be accepted against the appellant and the other accused. The contention that has found favour with the learned Judges of the High Court that there was bitter enmity between the eyewitnesses and the accused does not appear to be based on any definite evidence. On the other hand, what is indicated in the evidence is that there has been a feud between these sections of the same caste and we have not been shown any evidence of personal animosity between the eye-witnesses and the accused. That being so, it is difficult to believe that Saifal and Ganjoo whose presence at the occurrence cannot be disputed falsely implicated members of the opposite faction who were not there. In this connection it was contended for the appellant that the fact that the statements of these witnesses recorded by the Magistrate were not available was a definite disadvantage to the accused because if these statements had then been available it might have been possible to establish that at the early stage these two witnesses did not implicate all or any of these accused. But, it cannot be doubted that the police recorded the statements of these two witnesses and no contradictions in respect of them have been proved.
' As regards the statements by the Magistrate there is his evidence that Saifal named six persons as the assailants and Ganjoo, though, he did not name the six assailants, was definite that the assailants were six in number. Samano (P.W.9) who took the injured witnesses to the hospital stated that when he went to the place of occurrence Saifal told him that the accused were the assailants. It is significant that this statement was not subjected to cross-examination. There was no avoidable delay in lodging the first information and therein the names of all the accused including the one, who is absconding, are mentioned. In the circumstances we consider that the direct evidence in this case was reliable particularly the evidence of the two injured witnesses, and on that alone the conviction could be sustained.
' As for the decision which the learned Judges of the High Court have relied on, the head note has to be considered with the circumstances of that case. In fact that observation occurs after a discussion on of the evidence. There, the case and counter-case were dealt with. There were two reports to the police given by either side and the learned Judges came to the conclusion that neither side had given a correct version of the events and that both sides placed before the Court false version of what took place wholly inconsistent with the circumstances of the case. If the intention is that interested testimony should under no circumstances be relied upon unless it is corroborated. We have no hesitation in disagreeing with it. We think that decision there was on the facts of that case and has no application to the case under consideration. There would have been justification for the view taken by the High Court in the present case if there was personal animosity between the accused and the witnesses so that it could be said that they either falsely added persons who did not participate in the occurrence or substituted some of them by implanting those against whom they had a personal grudge, but the feud here was tribal and not personal.
' We, therefore, find that the appellant has been rightly convicted and accordingly dismiss the appeal.
(Note. Underlining is mine).
51. Learned counsel for the appellant then argued that Taj Muhammad Pan (P.W.8) has made improvements in his statement. According to him in the F.I.R. He (P.W.8) had alleged that he, alongwith Asmatullah and Fida Muhammad (deceased), had gone to the Baithak of Amir Hatim in connection with conciliation between them and Gul Nawaz appellant etc. However, when his statement was recorded, at the trial, he stated that they were summoned by Amir Hatim (deceased) so that a date could be fixed for effecting a compromise between the complainant party and the accused party. I do not tend to agree with the learned counsel for the appellant because the above exposition of fact would, in no way, constitute improvement. In both the statements the purpose and the intent of going to the Baithak of Amir Hatim (deceased) is the same. Whether they went to the Baithak of Amir Hatim when summoned or otherwise is immaterial.
The question for determination is whether they had in fact gone to the Baithak of Amir Hatim and for what purpose. In this respect. .There is no contradiction in the statement of Taj Muhammad Khan (P.W.8).
52. The learned counsel for the appellant then argued that the complainant was not present on the spot because if he had been there at the spot the accused would not have spared him and should have killed him. It would be sufficient to say that since he (P.W.8) was sitting outside the Baithak, his presence was not noticed by the accused. Moreover, he, being a young boy of 16/17 years of age, might not have been recognized by the accused with the result that he was not killed. Above all, killing of this witness (P.W.8) might not have been in the execution of the task ahead of the accused. In any case this is not a ground to discard the testimony of an eye-witness as to why he had not been killed.
53. I am, therefore, of the considered view that the presence of Taj Muhammad Khan (P.W.8) at the crucial time, his witnessing the occurrence, the time and the place of the murders of the three persons and the manner in which the deceased were done to death, stand fully established/corroborated by the site plan, the recoveries effected from the spot, the Murasila, the post-mortem report etc. Etc. The doctor, who examined the dead bodies of the three deceased, between 9-15 a.m. To 9-45 a.m., on the following day of the occurrence, has given the time, that had elapsed in between the death and post-mortem examination, as 16 to 17 hours. The said opinion of the doctor has not been questioned by the defence. Moreover, the doctor has opined that the three deceased, after having been injured, died within 1 to 15 minutes. This fact also supports the version of Taj Muhammad Khan (P.W.8) who had stated that, after the departure of the accused, when he approached the three deceased he saw them breathing their last and that thereafter they died then and there. Thus, the time of occurrence as narrated by Taj Muhammad Khan (P.W.8) and the time intervening injuries and death of the three deceased is fully corroborated by the Medical Officer (P.W.1).
54. It may also be noted that no sane person, with ordinary prudence, would leave the actual killers of his real brother and uncle and implicate innocent persons falsely for no rhyme or reason. There is nothing on the file to suggest, even remotely, that the complainant had any motive or animosity to charge the appellant/absconding accused falsely or substitute them for the real killers.
55. The learned counsel for the appellant has miserably failed to point out any substantial contradiction or improvement in the statement of Taj Muhammad Khan (P.W.8) so as to persuade me to discard his testimony. In my opinion, the murders were all pre-planned/premaditated. The three deceased had assembled in the Baithak of Amir Hatim (deceased) for finding out ways and means to patch up the matter with the accused party and were waiting for their arrival. The accused, on the other hand, took undue advantage of the easy access to their enemies (Asmatullah and Fida Muhammad) and killed them brutally. Additionally, they, in the process also killed Amir Hatim, an innocent person, who had no fault except that he was trying to settle the dispute between the parties which had resulted in couple of murders, on both sides, prior to the present occurrence.
56. In the circumstances, I am convinced that the prosecution has proved its case beyond any shadow of doubt against the appellant for having committed the offence with which he was charged.
57. I have, therefore, no hesitation in holding that the appellant was rightly convicted by the Thal Court which had given valid reasons for its conclusion. I fully concur with the findings of the Trial Court. There is no substance in this appeal which stands rejected.
58. No mitigating or extenuating circumstances exist to. Deviate from the normal penalty of death provided by law. Accordingly, the sentence awarded to the accused appellant is upheld.
59. The murder reference is answered in affirmative.
60. This judgment shall, however, have no bearing on the trial of accused Shamal Khan (since absconding) as and when he is arrested and put on trial.
' HAMID SAEED MALIK, J.-- This judgment shall dispose of Criminal Appeal No,88 of 1996 and Murder Reference No,3 of 1996.
2. Gul Nawaz, appellant herein, was tried by Mr. Abdur Rehman Khan, Special Judge, Lakki Marwat under section 302/34, P.P.C. (on two counts) for the murders of Fida Muhammad and Asmatullah.
He was found guilty and on conviction sentenced to death. He was also found guilty for sharing common intention with his absconding accused Shimal Khan, his brother, for the murder of Amir Hatim and sentenced to life imprisonment under section 302/34, P.P.C. With a fine of Rs,50,000 or in default whereof to undergo further 5 years S.-I. Two/Third of the fine on realization was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Vide his judgment/ order dated 7-9-1996.
3. V P.W.8 Taj Muhammad Khan made a report on 9-2-1991 to S.H.O. Nek Nawaz Khan (P.W.9) of Police Station Ghazni Khel at the spot as the said S.H.O. On receipt of knowledge about the occurrence himself arrived at the spot. The occurrence as per report has taken place at Deegarvela while report of the occurrence was lodged at 20-15 hours i,e, about four hours after the occurrence. It is stated in the report that after performing Deegar prayers complainant alongwith his deceased brother Fida Muhammad and uncle Asmatullah Khan deceased have gone to the Baithak of Amir Khatim deceased for settlement of their enmity with present accused/appellant etc. The said two deceased sat alongwith Amir Khatim deceased inside the Baithak while complainant was asked to sit outside. Accused/appellant and his brother absconding accused Shimal Khan arrived there armed with Klashnikovs and from the door of Baithak they opened fire.
As a result deceased Fida Muhammad and Asmatullah were hit with fire shots of accused appellant while deceased Amir Khatim was hit by the fire shots of absconding accused. Both the accused then decamped from the spot. The motive for the occurrence was stated to be blood feud enmity in reference to the murder of Sardaraz Khan, brother of accused/appellant for which deceased Fida Muhammad, his father and uncle were charged. The entire occurrence was allegedly seen by the complainant from the window of the Baithak.
4. During the trial prosecution produced and examined as many as 9 witness in support of its case.
The solitary eye-witness in the case is P.W.8 Taj Muhammad Khan, the complainant, who is real brother of deceased Fida Muhammad and nephew of deceased Asmatullah.
5. P.W.1 Dr. Muhammad Aslam, Medical Officer, District Headquarters Hospital, Lakki Marwat examined the dead body of deceased Asmutullah and found the following:-- External
(i) One entrance wound of fire-arm on the postero lateral part of right hip, five inches inferior to the right iliac crest, and 1-1/2 inches posterior to the mid axillary line, size half c.m. 1 x half c.m.
(ii) One exit wound of fire-arm on the postero lateral part of right hip two inches below the right iliac crest, size 1 c.m. x 1 c.m.
(iii) One entrance wound of fire-arm on the right lateral part of the abdomen, one inch above the right iliac crest, size 1/2 c.m. x 1/2 c.m. Cavity deep.
(iv) One exit wound of fire-arm on right lateral part of thorax in the posterior axillary line 4 inches below of axilla, size 1 c.m. x 1 c.m.
(v) One entrance wound of fire-arm on right postero lateral part of neck, three and half inch infero posterior to the right ear, six 1/2 c.m. 1/2 c.m. Charring marks present.
(vi) One exit wound of fire-arm of fire-arm on the back of right half of thorax, 5 inches medial to the posterior axillary line, and 6 inches below the inferior angle of right scapula, size 1 c.m. x 1 c.m.
(viii) One entrance wound of fire-arm on the left lateral part of thorax in the posterior axillary line 2" below the axilla size 1/2 c.m. x 1/2 c.m., cavity deep;
(viii) One exit wound on the back of left half of thorax, situatied one inch below the inferior angle of left scapula, size 1 c.m. x 1 c.m.
6. On internal examination, the Doctor had found thorax wall, right and left plurae, right and left lung injured, the abdominal walls, paritoneum diaphragm, the small and large intestines and liver also injured. Stomach & rest organs were found healthy with fluid juices while thorax ribs were found laterally fractured. In his opinion, the deceased had died due to injuries to the vital organs, i,e, lungs, liver, intestines, diaphragm, peritoneum, leading to massive haemorrhage shock. Time that elapsed between injuries and death was 1 to 10 minutes, while between death and post- mortem examination was 16 to 17 hours.
7. The said Doctor had also performed post-mortem examination of deceased Amir Khatim Khan on 10-2-1991 at 9-30 a.m. And externally found the following: .
External
(i) One entrance wound of fire-arm on left side of the head situated 4" above the outer canthus of left eye skin muscle and bone deep, size 1" x 1"
(ii) One exit wound of fire-arm on left side of head, three inches above the left ear and one inch lateral to wound No,1, size 3" x 3". Brains protruding out.
INTERNAL ' Scalp, skull, brain and its membranes injured and fractured. Stomach was healthy containing food juices, left temporal bone fractured.
' In his opinion, the death had occurred due to injury to vital organs, i,e, brain, meninges and skull bone leading to proposed hemorrhage shock.
' Probable time between death and post-mortem was 16-17 hours while that between injury and death was 1 to 5 minutes.
8. This P.W.9 had also conducted autopsy on the dead body of deceased Fida Muhammad the same date at 9-14 a.m. And found the following:-- External
(F) One entrance wound of fire-arm on left side of neck 3-3/4 inches lateral to mid line and two inches above left clavical, size 1" x 1".
(ii) One graze wound of fire-arm on left side of neck situated half inch above wound No,1 and 1-1/2" lateral to mid line, size 1/4" x 1/4".
(iii) One graze wound of fire-arm on the left side of neck situated one inch above wound No,2 and two inches lateral to mid line, size 1/4" x 1/4".
(iv) One exit wound on the back of right shoulder situated four inches infero medial to right shoulder joint, size 1-1/2" x 1-1/2".
Internal ' On internal examination, the Doctor had found posterior wall of right side of thorax, right pleurae right lung, the trachea, left carotid and oesophagus injured. Stomach was healthy containing fluid juices while right scapula was fractured.
' In the opinion of the said Doctor, the death had occurred due to injuries to vital organs, i,e, left carotid blood vessels, trachea, oesophagus, right lung, right pleura, right scapula leading to profuse haemorrhage shock. Time which consumed between injury and death was 5 to 15 minutes, while between death and post-mortem examination was 16 to 17 hours.
9. P.W.2, namely Bakht Jamal A.S.-1. Has registered the case on receipt of Murasila vide F.I.R. Exh.P.A.
He categorically admitted that he received Murasila at Deegarvela through Constable Salamat.
P.W.3 Hameedullah is a marginal witness to recovery memo. Exh.3/2 vide which Investigating Officer took into possession 5 empties of 7.62 bore and spent-bullets. P.W.4 Yousaf Khan was entrusted with warrants of arrest against accused/appellants and absconding accused under section 204, Cr.P.C. P.W.5 Abdul Rahim escorted the dead bodies from site of occurrence to the Hospital. The witness also stated that he accompanied the Investigating Officer from Police Station to the scene of occurrence. P.W.6 Salamat Khan F.C. Was a marginal witness to Exh.P.W.6/1. This witness also accompanies the Investigating Officer from Police Station to place of occurrence.
P.W.7 Noor Aslam identified the dead bodies. P.W.8 Taj Muhammad Khan is the complainant and only eye-witness of the occurrence. He made the report and in his statement before the Court corroborated the contents of his F.I.R. With certain deviations, i,e, in F.I.R. It is stated that complainant alongwith two deceased went to the Baithak of deceased Amir Hatim while in his statement before the Court, he stated that they were summoned by deceased Amir Hatim. The witness admitted that Village Kherokhel is linked with the Police Station by a metalled road. The witness further tried to explain the delay in lodging the report. Nek Nawaz the Investigating Officer was examined as P.W.9 who stated that he got information of the occurrence at Adda Ghazni Khel and from Adda he rushed to the spot where complainant met him and made report Exh.P.A. To him of the occurrence.
10. The recoveries from the spot are as under: ' Two empties of 7.62 bore recovered from point 5 in the site plan where accused/appellant's presence is shown. Three empties of 7.62 bore freshly discharged from point No,7.
' Two spent bullets from points "A" and "B" were recovered.
11. After the close of prosecution evidence, accused was examined under section 342, Cr.P.C.
Wherein he denied the charges and pleaded innocence.
12. M/s. Zafar Abbas Zaidi, Advocate for the accused/appellants, Sheher Yar Khan, Advocate for complainant and Saeed Hassan Shirazi, learned Assistant Advocate-General advanced arguments in support of their respective parties. We consciously considered their arguments and also perused the record with their help.
13. Prosecution ocular evidence is from the mouth of P.W.8 Taj Muhammad Khan. The enmity between the parties is an established fact. The occurrence took place at Deegarvela i,e, in between 4 and 5 p.m. While the report was lodged at 20-15 hours i,e, 8-15 p.m. On the spot. Distance in between Village Kherokhel where occurrence has taken place is 13/14 kilometers from Police Station and linked with a metalled road. Prosecution did not explain that how a time of about 4 hours was consumed between the occurrence and registration of the case that too at the spot. The attempt made by the complainant in his statement to meet the delay is neither plausible nor convincing, particularly keeping in view the conduct of P.W.8 Taj Muhammad Khan who stated in his statement that after lodging the report and making pointation of various points to the Investigating Officer, left the dead bodies of his real brother and uncle at the spot and went to his house. Such a conduct is not expected from such a near relation. From the unexplained abnormal delay, coupled with the said conduct of the complainant Taj Muhammad Khan it transpires that factually he has not seen the occurrence and he is a cooked/procured witness. Further the S.H.O. P.W.9 has stated that he was informed about the occurrence at Adda Ghazni Khel while P.W.5 Abdul Rahim and P.W.6 Salamat Khan has categorically stated that they have accompanied the Investigating Officer from Police Station to spot and as such contradicted the statement of P.W.9 the Investigating Officer in this regard and if this fact is accepted as stated by P.W.5 and P.W.6 then who informed the S.H.O. In Police Station and then why the information so received was not recorded. It is alleged and strongly argued by the counsel of accused/appellant that deceased Amir Hatim was a retired Police Inspector, therefore, the S.H.O. P.W.9 arranged the attendance of P.W.8 the complainant and made him an eye-witness to the occurrence while it was an unseen occurrence and this was the reason for delay in registration of the report and this fact gets support from the statement of P.W.2 Bakht Jamal A.S.-I. who stated that he received Murasila at Deegarvela which might not be the Murasila but will be the first information of the occurrence which he received in Police Station at Deegarvela.
Presence of eyewitness P.W.8 Taj Muhammad Khan is appearing doubtful and the occurrence does not seem to have taken place in a manner as stated at trial. P.W.8 Taj Muhammad Khan is the solitary witness of the occurrence who is the real brother of deceased Fida Muhammad and nephew of deceased Asmatullah and .Admittedly had previous enmity with accused. Inordinate delay in recording F.1.R. Particularly in case where F.I.R. Is recorded on spot by the Investigating Officer which have always been suspected by the superior Courts in absence of any plausible explanation. The ocular evidence in this case has been furnished by a close relative of the deceased having an enmity with the accused could only be accepted if found materially corroborated by some very strong corroboration. In the instant case recoveries from the spot could not be termed as corroborative piece of evidence. The very recovery of five empties from the spot is in total contradiction of narration made by the said Taj Muhammad Khan who has stated that each accused fired a burst at the deceased and the recoveries from the spot and for that matter injuries sustained by the deceased are not in consonance with the said version of the complainant.
Furthermore, the scene of occurrence is a Baithak where there is no chance of missing of the empties. Even there is only recovery of 2 spent bullets from the wall in range of the firing and no reference of any bullet marks on the walls of the Baithak are available where allegedly two bursts of Klashnikovs have fired. It would be in these circumstances not safe to rely on the testimony of P.W.8 who is highly interested and inimical towards accused.
15. In order to carry conviction on a capital charge, ocular account must come from unimpeachable source or must be supported by some strong circumstance. Appraisement of evidence of any eye-witness has to be based upon a full consideration and evaluation of all the circumstance appearing in the case where there is total absence of physical circumstances to connect the accused with the crime with a background of enmity. The eye-witness account furnished in the case in hand is lacking of the said qualification and is, therefore, liable to be discarded. Reliance in this respect can be placed on Bagh Ali and 4 others v. The State reported PLD 1973 SC 321, Attaullah and others v. The State PLD 1990 Pesh. 10, Abdul Hamid and another v. The State 1960 (W.P.) Pesh. 141 are referred in support of my view that reliance on any eye-witness, who is closely related to the deceased and inimical towards the accused as is the case in hand, would be unsafe unless it receives independent corroboration. Besides, absence of contradiction in statement of witness before police and his testimony at trial cannot be used to strengthen the witness's statement.
16. As stated earlier, the medical evidence is not consistent with the ocular account of the eye- witness of the case and had the witness been really present at the spot, discrepancies and lapses with which his evidence is pregnant would not have occurred. Reliance in this regard is placed on Ashiq Hussain v. The State, reported in 1993 SCMR 417. The F.I.R. Is held to be lodged after deliberations and consultations and is, therefore, not taken into its true prospective. Reference is made..To Islam Badshah etc. v. The State reported in PLD 1993 Pesh.
7. As discussed above, such like F.I.Rs, in absence of any plausible explanation which too was recorded on spot by the Investigating Officer have always been viewed with grave suspicion by the Superior Courts. The case of Sher Zaman and 2 others, reported in 1988 PCr.LJ 440 is relied upon for ready reference in this respect.
17. The upshot of my above discussion is that the prosecution has miserably failed to bring home guilt of the convict-appellant beyond any shadow of doubt. Therefore, by extending the benefit of doubt to the appellant, I accept his appeal, set aside his conviction and sentence and acquit him of the charge brought against him. He shall be set free forthwith if not wanted in any other case.
' The murder reference is answered in negative.
' MIAN MUHAMMAD AJMAL, J.-- I ,have had the privilege to go through the proposed judgments of Mr. Justice Sardar Jawaid Nawaz Khan Gandapur, and Mr. Justice Malik Hamid Saeed, whereby the former while dismissing the convict's appeal answered the murder reference in affirmative, whereas the later accepted the appeal and acquitted the accused appellant of the charge against him.
2. This criminal appeal is directed against the judgment dated 7-9-1996, of the learned Special Judge, Lakki, whereby Gul Nawaz Appellant was convicted under section 302, P.P.C. On two counts for the murder of Asmatullah and Fida Muhammad deceased and sentenced to death. He was also convicted under section 302/34, P.P.C. For committing the murder of Amir Hatim Khan and sentenced to life imprisonment alongwith fine of Rs,50,000 or in default of payment thereof, to suffer further S.-I. For five years. It was directed that on realisation of the fine, 2/3rd shall be paid to the legal heirs of the deceased as compensation.
3. The prosecution was set in motion by Taj Muhammad Khan (P.W.8) who reported to the police on their arrival at the spot, that on the day of occurrence after 'Digar' prayers he alongwith Asmatullah (uncle) and Fida Muhammad (brother) went to the 'Baithakh of Amir Hatim (arbitrator), Asmatullah his uncle asked him to go out as he wanted to discuss some matter with Amir Hatim deceased, accordingly he went out of the Baithak and sat on a ' cot' lying outside the Baithak. In the meantime, Gul Nawaz, accused-appellant and his brother Shimal Khan, absconding accused, armed with Klashnikovs came there and gunned down Fida Muhammad, Asmatullah Khan and Amir Hatim Khan. After the commission of the crime, both the accused made their escape good.
4 The prosecution case rests upon the sole ocular testimony of Taj Muhammad Khan (P.W.8), which would be considered in the light of surrounding circumstances. The contention of the learned counsel for the appellant that the P.W.8 is closely related to the dead, therefore, his evidence cannot be relied upon is not tenable, as there is no hard and fast rule that any person who is closely related to the deceased would always be unreliable witness nor it can be said that a stranger or non-related person would always be a truthful witness. The statement of the witness has to be weighed with reference to the facts and circumstances of the case and other evidence on the record. The credibility of the witness does not depend on the relationship but it flows from the statement itself which he makes and it is the quality and inherent merit of the statement which matters. In the instant case P.W. Taj Muhammad Khan has reiterated the version given by him in the F.I.R. And has given cogent reason for his presence at the spot, hence his evidence cannot be brushed aside merely because of his relationship with the deceased or enmity with the accused party.
5. The other contention that no independent person from the locality has appeared as a witness, has also no force, as the testimony of the witness cannot be discredited merely on the ground that none from the locality came forward to T depose as a witness. It is common knowledge that people from public generally avoid to be cited as witness in murder case so as to shun the work of animosity of the accused party. It has been held in Mst. Hayat Bibi's case 1976 SCMR 128 that:-- "Trial Court and High Court holding it very difficult and impossible to secure independent and disinterested witnesses in a murder case in district of Mianwali for fear of being regarded as enemies of accused---Prosecution witness and old woman of 71 years though suffering from weak eye-sight but able to identify person from a distance of 8/9 paces---Witness seeing assailants from a very close quarter not difficult for her to identify assailants known to her--No reason for such old woman to falsely implicate accused--Medical evidence fully supporting evidence with regard to manner of occurrence as well as number of assailants involved--Accused remaining in abscondence for about a month until arrested--No reason, held, to interfere with conclusions of Lower Courts based on reliance of ocular evidence as well as reporting circumstances."
The eye-witness has furnished direct evidence of convincing nature which is confidence inspiring and is supported by medical evidence, motive, abscondence, recovery of 7.62 bore empties, state of injuries and the weapons employed in the crime. It was a broad day occurrence and the witness had no difficultly in identifying the accused. The eye-witness was subjected to cross-examination and his evidence remained intact and could not be shaken by the defence, hence the conclusion drawn by the trial Court appears to be in line with the evidence on record. In case of Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659, the August Supreme Court of Pakistan has observed as under:-- "We are unable to accept the broad proposition that no conviction can be based on the solitary evidence of an interested witness. This view is not supported by the decision of this Court in the case of Nazir v. State PLD 1962 SC 269 as claimed on behalf of the petitioners. In the case under report it has been held that there can never be an inflexible rule that the statement of an 'interested' witness can never be accepted without corroboration. Besides it has been held in the case under report that for corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstances relied upon must have a hearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
' So far the delay in lodging the report is concerned, in my opinion, the same has sufficiently been explained by P.W.8 in his statement. It may be observed that after the occurrence the complainant went to his house to inform his family members about the unfortunate incident but there was no male member present in the house, so he went to road side to arrange a Datsun but could not find any transport and thus disappointed came back to the spot. In the meantime the police arrived and he reported the matter. There is nothing unnatural in the conduct of P.W.8 as any person in his place would have acted in the same manner. Hence in the circumstance, the delay, if any, has plausibly been explained by the complainant. There is nothing on the record to support the statement of Bakht Jamal Khan A.S.-I. (P.W.2) regarding the receipt of Murasila' by him at 'Digar Vela', and it appears that the police official has made an obliging answer in the cross-examination which has no legal value. Such concession by formal witness has been deprecated by the Supreme Court of Pakistan. Reference can be made to PLD 1976 SC 452 and PLD 1976 SC 593.
6 Another assertion of the learned counsel for the appellant that the complainant was not present on the spot as alleged by him and had he been there he would not have been spared by the assailants, did not impress me at all, as the possibility is either the complainant was not noticed by the accused or he was considered not to be of any significance being of tender age or he was not recognised to be from the rival party. Anyhow it was to his good luck that he did not become victim of the accused and escaped who gave an eye account of the tragedy which appears to be straight forward and natural, thus, there is no reason to disbelieve it.
7. The occurrence took place in February, 1991 whereas the statement of P.W.8 was recorded in November, 1995 i,e, after four years and 9 months, therefore, after the lapse of such a long time certain contradictions or discrepancies between the earlier statement and statement at the trial were we Inevitable and natural, hence they would have no adverse effect on the prosecution case.
Reference can be made to PLD 1977 Supreme Court 557.
' In view of the above discussion, I am of the opinion that prosecution has proved its case against the appellant, as such, I tend to agree with the judgment of Mr. Justice Sardar Jawaid Nawaz Khan Gandapur, J. And while dismissing this appeal answer the murder reference in the affirmative.
' This judgment shall have no effect on the case of the absconding accused as and when tried.