' JAWAID NAWAZ KHAN GANDAPUR, J.--- Accused Raza Khan son of GuI Said, aged about 50 years, resident of Nisatta, Tehsil and District, Charsadda, was put on trial in the Court of Additional Sessions Judge, Charsadda (Syed Afsar Shah) for having committed an offence punishable under section 302/324/34, P.P.C.
2. The allegations against the accused are that he, alongwith his co-accused, namely Murad and Zahoor (since absconding), while armed with lethal weapons and in furtherance of their common object, intentionally killed Hunar Khan son of Ajraman, by firing at him with pistols on 14-10-1991. The unfortunate incident took place on the main Charsadda Road, near Rahat Abad, ' situated at a distance of about 2 kilometres from Police Station Nisatta, Tehsil and District Charsadda. The Additional Sessions Judge, vide his judgment, recorded on 7-11-1994, found the appellant-accused guilty of killing Raza Khan and thus convicted him under section 302/34, P.P.C. And sentenced him to imprisonment for life and also to pay a fine of Rs,50,000 or in default thereof to undergo further S.I. For two years. It was further directed that the fine, if realized, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The appellant-accused was also convicted under section 324/34, P.P.C. (on three counts) and sentenced to one year on each count with a fine of Rs,5,000 earh. The Additional Sessions Judge, however, extended the benefit of section 382-B, Cr.P.C. To the appellant-accused. Since the appellant-accused was present in custody, therefore, he was sent to jail to serve his sentence as stated above. According to the Additional Sessions Judge the appellant was not visited by the extreme penalty of death because of his age.
3. Perpetual warrants of arrest were issued against Murad and Zahoor, the absconding accused, and the District Magistrate, Charsadda was directed to register their names in the list of proclaimed offenders kept in his office. It was further directed that the case property, if any, be kept in tact till the arrest/trial of the absconding accused.
4. To redress his grievance, the appellant (convicted accused) has now challenged the legality/vires of the conviction and sentence imposed upon him by filing this appeal.
5. On the other hand, Jan Wali Khan son of deceased Hunar Khan, resident of Rahat Abad, Tehsil and District Charsadda, has filed Criminal Revision No,117 of 1994 (Jan Wali Khan v. Raza Khan and others) for the enhancement of the sentence awarded to the appellant. He has prayed that under the circumstances of this case the punishment of imprisonment for life be enhanced to the normal sentence of death.
6. The prosecution, story, as disclosed in the F.I.R. (Exh.P.A.) stated briefly, is that on the eventful day (14-10-1991), complainant Muhammad (P.W.10) had gone to attend the Court of Assistant Commissioner, Charsadda in connection with a case registered under section 307, P.P.C. And pending trial in his Court. He was accompanied by his cousin, Hunar Khan (deceased) and two of his other relatives, i,e,, Muhammad Habib (not produced) and Fazal Amin (P.W.11). After attending the Court all the four boarded a bus to go to their homes. When the bus reached Rahat Abad it was stopped. Complainant Muhammad (P.W.10), Hunar Khan (deceased), Fazal Amin (P.W.11) and Muhammad Habib (not produced) deboarded the bus. The moment they got down from the bus, they noticed that the appellant (Raza Khan) and the absconding accused (Murad and Zahoor), duly armed with pistols, were standing there. On seeing the complainant party, the appellant and his associates started firing at them indiscriminately. It has been specifically alleged in the F.I.R.
That it was the appellant who had killed Hunar Khan (deceased) by firing at him effectively with his pistol. Hunar Khan, it may be stated, died on the spot. The appellant-accused and his companions, after the killing decamped from the scene of occurrence.
7. The dead body of Hunar Khan, deceased was taken to Police Station Nisatta where complainant Muhammad (P.W.10) lodged the report (Exh.P.A.) in the abovementioned terms. He also stated in the report that the occurrence was not only witnessed by him but also by his companions, namely, Fazal Amin (P.W.11) and Muhammad Habib (not produced).
8. The motive for the commission of the offence, as disclosed by the complainant (P.W.10), was that there existed previous blood feud, enmity between the parties, dispute over the landed property apart.
9. In the Police Station Head Constable, Muharrir Taj Meer (P.W.5) reduced the report of complainant Muhammad (P.W.10) in the form of F.I.R. (Exh.P.A.) and read over and explained the same to the complainant, who, after accepting its contents to be correct, thumb-impressed the same. Thereafter, the injury-sheet (Exh.P.C.) and the inquest report (Exh.P.C./1) in respect of the deceased was prepared by H.C. Taj Mir (P.W.5). He then despatched the dead body of the deceased, under the escort of constable Naseem Khan (P.W.6), to the Civil Hospital, Charsadda for post-mortem examination. He also sent the copy of the F.I.R. To the S.H.O. Nisatta, Shahid Khan (P.W.7) for investigating the case.
10. The dead body of Hunar Khan (deceased) was then shifted from the police station to the mortuary, by constable Naseem Khan (P.W.6), where it was identified by Lal Zareen (P.W.8).
11. At the mortuary, Dr. Abdur Rashid (P.W.4) conducted the post-mortem examination at 1-30 p.m.
And prepared his report (Exh.P.M.) alongwith pictorial (Exh.P.M./1). On examination, the doctor found the following injuries on the person of the deceased:-- "External examination R.M. Not present
(1) Fir-arm entrance wound lateral and above the sternum, size 1-1/4" x 1-1/4".
(2) Fire-arm entrance wound size 1-1/4" x 1-1/4" on left side below wound No,l.
(3) Fire-arm entrance wound 1-1/4" x 1-1/4" on sternum.
(4) Fire-arm entrance wound 1-1/4" x 1-1/4" on left side 4" above the sternum.
(5) Fire-arm exit wound 1-1/4" x 1-1/4" on renal angle.
(6) Fire-arm exit wound 2" below wound No, 1 . By this No,1, I meant to exit No,1 which has been given serial No,5 in this statement.
Internal examination ' Stomach which contained semi-digested food, was half full and was injured. Kidney was also injured while the bladder was full of urine. Walls, ribs and cartilages fractured at site of inlet injury.
Pleurae, lyranx, tracheas, both lungs, pericardium, heart and blood vessels were injured."
12. In the opinion of the doctor, the death was caused because of shock and haemorrhage, which resulted from the fire-arm injury to the vital organs of the body of the deceased such as heart and lungs. According to him the probable time between injury and death was instantaneous whereas the probable time between death and post-mortem examination was from 2 to 3 hours.
13. Sub-Inspector Javed Khan (P.W.12) who was the S.H.O. Of the police station was not present there and had gone to Police Station Charsadda, in connection with some special duty, on the day of occurrence, and as soon as he received the information about the murder, through wireless, he rushed to the spot. On reaching there, he initiated the investigation and recovered three empties (Exh.P./1) and one spent bullet (Exh.P.2) of .32 bore pistol and took the same into his possession vide Exh.P.B./1 in the presence of Khaki Shah (P.W.9). He sealed the same into a parcel. The Investigating Officer also took into his possession the blood-stained earth from the place of occurrence vide recovery memo. Exh.P.B./2 in the presence of its marginal witnesses including P.W.9. The site plan (Exh.P.B.) was prepared by him at the instance of the complainant (P.W.10) and eye-witness (P.W.11). The blood-stained clothes, i,e, shirt (Exh.P.3), Shalwar (Exh.P.4), belonging to the deceased, with corresponding cut marks were also taken into possession vide; recovery memo. Exh.P.B./3, in the presence of H.C. Rizwanullah (P.W.2). The Investigating Officer also took into his possession the sealed bottle containing the spent bullets which were extracted from the dead body of Hunar Khan.
All these items, it may be mentioned, were produced before the Investigating Officer by F.C.
Naseem Khan (P.W.6). Thereafter, the Investigating Officer recorded the statements of the P.Ws.
Under section 161, Cr.P.C. Since all the accused were avoiding their arrest, therefore, he applied and obtained warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. And handed over the same to D.F.C. Ali Haider (P.W.1) for execution. The Investigating Officer vide his application P.E./2 sent the blood-stained earth and the bloodstained clothes to Forensic Science Laboratory and in this respect report (Exh.P.G.) was received from the Chemical Examiner and the Serologist, duly signed by Akhtar Gul and Ahmad Mustafa. The Investigating Officer (P.W.12) was then transferred and therefore, he handed over the investigation to his successor S.H.O. Shahid Khan (P.W.7).
14. Since all efforts of the police to arrest the accused did not yield any result and proved ineffective, therefore, complete challan under section 512, Cr.P.C. Was submitted, against the accused on 22-11-1991 by S.H.O. Shahid Khan (P.W.7).
15. It was in the month of January, 1993 that Sub-Inspector Hassan Khan (P.W.3) raided a house situated in village Talab Koroona and arrested the appellant accused who was hiding in the Ghani (sugar crushing machine) of one Saifur Rehman. At that time he was also carrying .30 bore pistol alongwith a bandoliar containing 15 rounds. Accordingly another case under section 13, Arms Ordinance was also registered against him. Since the appellant was required in the murder case in hand, therefore, he was apprehended in this case also. Sub-Inspector Hassan- Khan (P.W.3) then submitted a supplementary challan against him.
16. At the trial the accused pleaded not guilty and professed innocence. According to him he was falsely charged in the present case because of the bitter relationship, which existed between the parties. He, therefore, claimed trial.
17. To establish its case, the prosecution examined as many as 12 witnesses, almost all mentioned above. The appellant, it may be mentioned here, did not choose to be examined as his own witness under section 340(2), Cr.P.C. And also refused to produce any evidence in his defence.
18. In the main, reliance has been placed on the direct evidence of complainant Muhammad (P.
W.10) eye-witness Fazal Amin (P. W.11), postmortem report (Exh.P.M.) and the recoveries, motive apart.
19. Let us proceed to discuss these one by one. The ocular evidence is taken up in the first instance.
20. There is no denying the fact that the eye-witness account has been furnished by complainant Muhammad (P.W.10) and Fazal Amin (P.W.11) who happen to be closely related to the deceased.
Since both the eye-witnesses are interested and partisan, therefore, their evidence would require to be put to close and critical scrutiny/analysis. It may be stated that if the statement of such a witness inspires confidence and no independent witness was available then the Court may rely on the testimony of the interested witness provided it is otherwise free from doubt. In Roshan and others v. The State PLD 1977 SC 557 it was held:-- "There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of interested witness? Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the ' interested' witness."
21. In case reported as Sharif and another v. The State 1973 SCMR 83 it has been observed by their Lordships:- "Corroboration may be offered by anything in circumstances of the case which tend to satisfy the mind of the Court that the witness has spoken the truth."
22. In Niaz v. The State PLD 1960 SC 387 his Lordship Mr. Justice Kaikaus observed:-- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there is no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, a further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it."
23. Similarly in Shihab Din v. The State PLD 1964 SC 177 his Lordship Mr. Justice Cornelius, Chief Justice, observed:-- "The mere relationship of witness does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed."
24. Keeping in mind the abovementioned principles as laid down by the august Supreme Court of Pakistan for appreciating the ocular testimony of the related/interested witnesses, we find that the occurrence took place at day time (11-00 a.m. ).
25. The complainant while deposing on oath as P.W.10, in his examination-in-chief fully supported the version of the prosecution case as disclosed in the F.I.R. (Exh.P.A.). However, in his cross- examination he admitted that he and his sons, namely, Ahmad Ali (aged 28 years) and Luqman (aged 20 years) were charged under section 307, P.P.C. For having effectively fired upon Bayar Gul and that it was for this reason that all of them had gone to attend the trial Court. According to him, Hunar Khan (deceased), Fazal Amin (P.W.11) and Muhammad Habib had accompanied him for his protection. He further stated that when the case was called for hearing he alongwith his two sons put in the appearance and were duly marked as present. He alleged that Hunar Khan (deceased), Fazal Amin (P.W.11) and Muhammad Habib had not entered the Court room and had remained in the premises out side the Court room. According to him after the adjournment of the case and after getting "Parcha Peshi" for the next date, all of them left for village through the bus except for his two sons who stayed back with his counsel Mr. Waris Khan, Advocate.
26. This witness admitted that one Janas son of Mujram Khan had charged Hunar Khan (deceased) for having molested his daughter, that when Janas went to Hunar Khan to lodge a protest in this behalf, Hunar Khan (deceased) had fired upon him and thus a report was lodged against the deceased by Janas.
27. He also admitted that a triple murder had taken place in which Sabz Ali, Tehseenullah and Umerzada were killed, that the said incident took place near the house of Hunar Khan (deceased).
That in fact during the said occurrence the cattle of Hunar Khan (deceased) was also injured. He, however, refuted the suggestion that Hunar Khan was also involved in that case as he had given "cover" to the accused who had committed the triple murder. He also refuted the suggestion that Hunar Khan (deceased) was killed by some unknown assailants who were sitting, at the relevant time, on the roof of the bus and that he was not present at the time of occurrence and had not seen the same as such.
28. The other eye-witness Fazli Amin (P.W.11) is the son of Hunar Khan (deceased) and is the nephew of the complainant (P.W.10). When examined on oath as a prosecution witness, he fully supported the prosecution version as contained in the F.I.R. (Exh.P.A.) as well as narrated by the complainant (P.W.10), in his examination-in-chief. However, this witness, in his entire statement, did not mention a word about the two sons of the complainant i,e,, Ahmad Ali and Luqman. In point of fact, in his cross-examination, he contradicted complainant (P.W.10) when he stated:-- "Only Muhammad P.W. Went inside the Court while I, alongwith my father (Hunar Khan) and P.W.
Muhammad Habib, was standing outside the Court room."
29. Be that as it may, if the statement of this witness, who happens to be the son of the deceased, is taken to be correct then the complainant's statement, recorded on oath, becomes false. It is, therefore, very much obvious that one of two eye-witnesses has lied regarding this important point.
30. A close scrutiny of the statement of the complainant (P.W.10), one of the alleged eye-witness, would reveal that he had admitted, in his cross-examination, that a few persons from Nisatta were travelling in the bus but he coulc' not name them as they belonged to another village while he (the complainant) belonged to Rahat Abad Village, situated at a distance of about 100 double paces from the scene of occurrence. (Pages 30 and 31 of the Print Book). According to the complainant many persons from his village, Rahat Abad, were attracted to the spot after hearing the report of the fire shots. However, he did not inform them about the occurrence as they had only come to see the "deceased". Similarly the other eye-witness, Fazli Amin (P.W.11), in his cross-examination stated:-- "Numerous persons from Rahat Abad were attracted to the spot on the report of the fire shot."
(Page 33 Print Book).
31. Even the Investigating Officer, S.-I. Javed Khan, S.H.O. (P.W.12) admitted this fact in his cross- examination and stated:-- "When I reached the spot, eye-witnesses and 2/3 other persons were present there." (Page 36 Print Book).
32. The Investigating Officer (P.W.12) further added:-- "A Foot Constable was also present."
33. It would, therefore, follow that immediately after the occurrence people hailing from the complainant's village were attracted to the spot and 2/3 persons, besides an F.C., were still present there when in the meantime, The Investigating Officer reached the scene of occurrence straight from Charsadda.
34. In the circumstances, we fail to understand as to what prevented him (Investigating Officer) from joining these independent, disinterested and natural witnesses with the investigation of the case. There is not an iota of evidence to show that the Investigating Officer had in fact attempted to record their statements or had requested them to join the investigation. Therefore, it shall be presumed that the said persons were not ready to support the prosecution story as disclosed by the complainant in the F.I.R. (Exh.P.A.). This fact has introduced an element of uncertainty regarding the credibility of the version with regard to the manner in which the deceased was done to death.
35. Besides, there is nothing on the file to suggest that on the day of occurrence, the complainant (P.W.10), Hunar Khan (deceased) and Fazli Amin (P.W.11) had, in fact, gone to attend the Court of Assistant Commissioner, Charsadda, where a case under section 307, P.P.C. Was pending against them. The prosecution could have taken certified copies of the order-sheet of the said case to show that the complainant and his sons had attended the Court on the morning of the eventful day. They could have also produced the Reader of the Court, alongwith the "Register Peshi" to show that complainant's case under section 307, P.P.C. Was fixed on that date. The best evidence which could have been procured so easily, was not produced, to satisfy the judicial mind of this Court that on the eventful day the complainant (P.W.10), his sons, Hunar Khan (deceased), Fazli Amin son of the deceased (P.W.11) etc. Had gone to the Court and that on their way back home they were way laid by the appellant and the absconding accused, for reasons best known to the prosecution alone. The fact, that the statement of Mr. Waris Khan, Advocate, to show that the complainant and his sons had gone to attend the Court and had contacted him on the day of occurrence was also not recorded nor was he produced as a witness to prove this fact, cannot be lost sight of.
36. In criminal case, the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused.
The defence plea is always to be considered in juxtaposition with prosecution case and in the final analysis if the defence plea is proved or accepted then the prosecution case would stand discredited. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case then in that case it would be enough. It may be mentioned here that in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond reasonable doubt would not diminish even if the defence plea is not proved or is found to be false. Ashiq Hussain v. The State reported as 1993 SCMR 417.
Similarly, it was held in Hakim Ali and others v. The State 1971 SCMR 432 that in criminal trial the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence.
37. The damaging statement, coming as it does, from the mouth of the complainant (P.W.10), the prosecution's star witness, cannot be easily/legally brushed aside, who while in the witness-box, stated:-- "I did not narrate the occurrence to any person on way to Police Station for lodging the report. I, for the first time, narrated the occurrence to Javed Khan (P.W.12) in the police station... After the report was recorded I and the Investigating Officer left for the spot. I pointed out various places on the spot to the Investigating Officer."
38. As against this the Investigating Officer, S.-I. Javed Khan, S.H.O. (P.W.12), when examined, stated:-- Examination-in-chief "During the days of occurrence I was S.H.O., Police Station Nisatta and on the day of occurrence, I was in Police Station Charsadda in connection with special duty when I got the information about the murder, through wireless, and on which I rushed to the spot."
Cross-examination "I got the information about the occurrence at about 11-35 a.m. Through wireless. Anyhow I have not mentioned this fact in my D.D. Because at that time I was not in my police station. I recorded my diary the moment I reached the spot from Police Station, Charsadda I would have reached the spot from Police Station Charsadda in half an hour."
39. These material contradictions between the statements of the complainant (P.W.10) and the Investigating Officer (P.W.12), if taken into consideration, as these should be, not only demolish the case as set up in the F.I.R. But also shatter the entire fabric of the testimony of the complainant (P.W.10). The prosecution witnesses, in our opinion, have contradicted each other and therefore, their evidence is inherently defective. As such it does not inspire confidence. The complainant, in our considered view, is a compulsive liar and, therefore, the question of sifting the grain from the chaff does not arise.
40. This brings us to assess the correctness/validity of the site plan (Exh.P.B.) prepared by the Investigating Officer (P.W.12) at the instance of the complainant (P.W.10) and the other eye-witness (P.W.11). A perusal of the site plan (Exh.P.B.) would show that Hunar Khan (deceased), complainant Muhammad (P.W.10), Fazli Amin (P.W.11) and P.W. Muhammad Habib (not produced) have been shown to be present, at the time of occurrence, at points Nos.1, 2, 3 and 4 respectively. As against this, the appellant-accused (Raza Khan) and the absconding accused (Zahoor and Murad) have been shown to be present, at the relevant time, at points Nos.5, 6 and 7, respectively. The site plan would show that the deceased was standing at point No,1, whereas the appellant-accused was standing at point No,5. The distance between the two points is about three paces, whereas the absconding accused, shown at points Nos.6 and 7, were at a distance of about four paces from the complainant (P.W.10), and about nine paces from Fazli Amin (P.W.11). All the points, mentioned/detailed above, are located very close to and clearly visible from each other and are situated on the main Charsadda-Nowshera Road. Nothing is there in between these points to obstruct/block the view.
41. Keeping in view the site plan, as described above, we would now revert back to the versions of the complainant (P.W.10) as well as Fazli Amin (P.W.11). Both of them have categorically stated, before the trial Court, that the moment they got down from the bus, the appellant alongwith his companions, i,e, the absconding accused, who were all duly armed with "Tamanchas" started firing at them. According to them, with the firing of the appellant, Hunar Khan (deceased) was hit, fell to the ground and died on the spot. It would be most appropriate if the version given by these two eye-witnesses in this respect, is, reproduced, in their own words, for the sake of convenience.
Complainant Muhammad (P.W.10) in his examination-in-chief stated:-- "It was 11-00 a.m. As soon as we got down from the bus accused Raza Khan, the absconding accused Murad and Zahoor who were standing there duly armed with Tamanchas started firing at us as a result with the fire of Raza Khan accused, Hunar Khan was hit and fell to the ground and died on the spot."
42. Whereas Fazli Amin son of the deceased, when examined as P.W.11, stated:-- "When we reached Rahat Abad, we got down from the bus, accused Raza Khan and absconding accused Zahoor and Murad duly armed with pistols, were standing there. It was about 11-00 a.m.
The accused and the absconding accused started firing at us, as a result of their firing, my father was hit with the fire shot of Raza Khan accused and died on the spot, and we escaped unhurt."
43. Before dilating upon the truthfulness of the version given by these two eye-witnesses, we would like to mention that the Investigating Officer, while appearing as P.W.12, stated that he did not find any empty at points Nos.6 and 7, the places where the absconding accused were allegedly present. According to him he had found only three empties on the spot but had not pointed out the places where from these were recovered. The version given by the Investigating Officer in his own words, in this respect, is as follows:-- "I have not given separate points to the three empties. At point No,5 of the site plan the presence of accused Raza Khan has been shown. I have not noted the distance between the empties which I had found on the spot in scattered position. I have not given the total area on which the empties were lying." (page 37 of the Print Book).
44. We may point out that if we take the version as advanced by the two witnesses as correct then in that case we fail to understand as to how complainant Muhammad (P.W.10) and Fazli Amin (P.W.11) escaped unhurt when both of them were fired upon by the absconding accused from such a short distance/close range and that only Hunar Khan was killed and that too by the appellant alone as alleged. The entire prosecution story as advanced, in our view, is nothing more than a mere concoction. It is not only false but is also incredible/unbelievable.
45. Let us now take into account the pictorial (Exh.P.M./1). It would show that the deceased had not only received three bullet entrance wounds (Nos.1, 2 and 4) on his chest, little towards the left side but had also received the fourth bullet wound (No,3) in the centre of his chest, little below his neck.
If the version of the two P.Ws., in the circumstances, is taken to be correct, then in that case the appellant, who was at a distance of about three paces from the deceased at the time of the alleged firing, had fired while he was in standing position. Accordingly all the exit wounds, i,e, Nos.5 and 6 should have been at the back of the deceased. However, this is not the case. Dr. Abdur Rashid when examined as P.W.4 stated:-- "The receipt of the injuries have been correctly shown by me in the pictorial (Exh.P.M./1). On the pictorial I have correctly included in brackets injuries Nos.1, 2, 3 and 4 which are described as entrance. Likewise I have bracketed injuries Nos.5 and 6 and have shown them as exit wounds. Exit wound No,5 corresponds to entrance No,1 and exit No,6 may correspond to entrance wound No,2. It is correct that entrance wound No,1 is at a higher level than exit No,5 and likewise the same position applied to entrance No,2 and exit No,6. It is correct that the missile causing entrance No,1 had moved down from left towards right side and the same is the position of Nos.2 and 6. I have not shown in the pictorial the specific place from which I recovered the spent bullet. The place of recovery of those bullets may be below the abovementioned entrance wound Nos.1 to 4. (page 9 and 10 Print Book).
46. From the above narration of facts, it is, therefore, crystal clear that whoever fired the effective shots at the deceased, was on higher pedestal than the deceased. It would, therefore, follow that those shots were not fired by the appellant who was standing at a distance of three paces from the deceased and was at par with him.
47. The conflicts/contradictions between the report lodged by the complainant (P.W.10), the ocular testimony, the site plan and the medical evidence are irreconcilable and have shattered the very veracity of the ocular testimony of the complainant (P.W.10) as well as P.W.11 which has become highly doubtful.
48. Needless to mention that anything which goes in favour of the accused must be taken into consideration and the benefit of the same, if any, be extended to him not as a matter of grace but as a matter of right 1996 PCr.LJ 238. It appears to us that the occurrence has taken place in a different context than the one alleged by the complainant in the F.I.R. It may be mentioned here that the prosecution, no doubt, sees only what it is prepared to see but in the present case, as discussed above, the ocular version being inherently defective and false merits no consideration and is accordingly discarded.
49. Next we have to see the evidentiary value of the "motive" as given in the F.I.R. For the commission of the offence. The same, to our mind, has not been proved during the trial by producing cogent evidence. The same has not been disclosed with full details. Besides it is as vague as it is hazy. Strangely, no documentary evidence has been produced to show that criminal/civil litigation is/was pending in any Court between the appellant and the deceased. This fact alone injects an element of falsehood regarding the alleged motive as set up in the F.I.R. No doubt, the prosecution is not required to disclose/set up a motive but once it chooses to do so then it becomes its obligation to prove it by cogent evidence. Failure to do so shall not only damage the credibility of the prosecution case beyond repair but it would also be fatal for the prosecution case.
50. We have carefully gone through the record of the case and have heard the learned counsel for the parties in detail, and are of the considered view that the evidence produced by the prosecution is contradictory in nature and in its essential features and therefore, does not inspire confidence.
On the other hand the explanation as given by the appellant in his statement recorded under section 342, Cr.P.C., has given a fatal blow to the story unfolded by the G complainant (P. W.10) and the son of the deceased (P. W.11) in a discrepant manner during the trial. We, therefore, prefer to give credence to the explanation offered by the appellant and feel free to hold that the charge, laid at the door of the appellant, is the result of subsequent manipulation of the complainant and his associates.
51. In the circumstances, we hold that the prosecution has miserably failed to prove its case against the appellant. Accordingly we accept this appeal and set aside the conviction and sentence as recorded by the Sessions Judge vide: his impugned judgment, dated 7-4-1994. The appellant shall be released forthwith provided he is not required in any other case.
52. Since the appeal filed by the appellant has been accepted, therefore, the revision petition for the enhancement of the sentence awarded to the appellant, ipso facto, stands dismissed.
(Sd.)
' Jawaid Nawaz Khan Gandapur ' MIAN MUHAMMAD AJMAL, J.--- I have had the privilege to go through the proposed judgment of my learned brother Mr. Justice Jawaid Nawaz ' Khan Gandapur, but regret to say that I do not find myself in agreement with the same. I need not recapitulate the facts of the case as the same have been given in detail in the proposed judgment.
2. As per F.I.R. The occurrence took place at 11-00 a.m. The report whereof was lodged by Muhammad (P.W.10) within half an hour in the police station, which was at distance of 2 Km. From the place of occurrence, wherein the appellant was charged alongwith Murad and Zahoor who are still absconding, for effectively firing at the deceased. In such a promptly lodged report giving detailed account of the occurrence, the possibility of any fabrication or concoction can conveniently be ruled out. The complainant appeared as P.W.10 in Court, where he in his statement reiterated the version as given by him in the F.I.R. He stated that on the day of occurrence he alongwith Hunar Khan deceased, his cousin, Muhammad Habib and Fazl-i-Amin P.Ws. Had gone to attend the Court of Assistant Commissioner, Charsadda in case under section 307, P.P.C. And after attending the Court they left for their village in a Bus. At 11 a.m. They reached near Rahatabad, where they got down from the Bus. Raza Khan, the appellant alongwith Murad and Zahoor absconding accused, were standing there duly 'armed with "pistols" who started firing at them.
Hunar Khan was hit and killed by the firing of Raza Khan on the spot, while the complainant, Habib and Fazl-i-Amin luckily escaped. The promptly lodged report finds complete confirmation from the statement of the complainant (P.W.10) and Fazl-i-Amin (P.W.11). They were subjected to lengthy cross-examination by the defence counsel in order to unnerve them and to create discrepancies in their statements but the defence failed to extract anything to its advantage as both the witnesses stood firm to the original version and their evidence on the main features of the case stayed consistent. The only contradiction between the statements of P.W.10 and P.W.11, as pointed out by the learned defence counsel was that the former in the cross-examination stated that he alongwith his sons attended the Court of Assistant Commissioner which was noted by the Reader whereas the later stated in the cross-examination that he cannot say that on the call of the case, only Muhammad went inside the Court while he alongwith his father and P.W. Muhammad Habib remained outside the Court room. On minute reading of the aforesaid statements, one would not find any material contradiction between the two statements, rather they have said the same thing in different words and their evidence as a whole conforms to the other evidence on the record. The appellant cannot be allowed any premium of the minor discrepancies which were inevitable in the lengthy cross-examination of the witnesses as they were examined after the lapse of three years. It is well-settled that minor discrepancies/contradictions between the testimony of the witnesses would not render the evidence unworthy of credence. In case of Abdul Rashid v. Umid Ali reported in PLD 1975 SC 227, the learned Supreme Court observed as follows:-- "Some discrepancies are inevitably bound to occur on account of lapse of memory owing to the intervening period whichd was more than 16 months in the instant case. Of course, there have been cases where thoroughly drilled and well-tutored witnesses after going through several rehearsals made statements which were almost verbatim repetitions of their police statements as well as those of each other at the trial and the Courts have been very rightly sceptical about such parrotlike reproductions. It is only the material discrepancies coming into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. Nothing of the kind is noticeable in the instant case. On the other hand, I have not been able to find any inherent infirmity in the testimony of the eye-witnesses casting doubt on its verasity."
' The main stress of the arguments of the learned counsel for the appellant was that Hunar Khan deceased, Muhammad Habib and Fazl-i-Amin were neither accused nor witnesses in the case under section 307, P.P.C. Pending before the S.D.M., Charsadda, then why did they go to the said Court alongwith Muhammad (P.W.10). The answer to this question has been given by P.W.10 himself, in the cross-examination in these words.
"It is correct that the deceased Hunar Khan, P.W. Muhammad Habib and Fazli Amin were not witnesses in the said case nor they were charged therein. They had only gone with me to the Court."
' It is common knowledge that close relatives dand friends of the accused usually accompany him to the Court on the dates of hearing, so it is not unnormal that the complainant being the first cousin of the deceased had gone with the deceased, his son and Muhammad Habib to the Court of Assistant Commissioner, Charsadda on the date fixed. Copy of the order-sheet Exh.D.3 abundantly proves the fact that 14-10-1991, on which date the occurrence took place, was fixed before the Assistant Commissioner, Charsadda, where Muhammad complainant appeared as an accused which provides corroboration to the version given in the F.I.R. The report lodged with expedition giving detailed narration of occurrence, exclude the possibility of false implication, fabrication or concoction. Reliance has been placed on supra cited case wherein the following law has been laid down:-- "The F.I.R., which was lodged within all the promptitude within half an hour of the occurrence not only mentioned the names of the accused, the deceased and the witnesses but also gave an elaborate and convincing ocular account of the occurrence. Having regard to its undisputed time and place, there could not be hardly any doubt as to the identity of the assailants, nor could one see any earthly reason for substitution. The details of the two murders contained in the F.I.R. And the specific role attributed to the accused in an eye-witness account could not have been a fabrication, the figment of Abdur Rashid's imagination or something merely based on suspicion."
' The appellant himself has admitted in his statement recorded under section 342, Cr.P.C. About the case pending before the Assistant Commissioner, Charsadda against Muhammad complainant and his sons and produced the copy of challan Exh.D.1, copy of the application Exh.D.2 and copy of order-sheet Exh.D.3. He while answering the question, 'what is your statement and why are you charged' replied as under:-- "I am innocent ana falsely charged, on account of family I had no direct motive to participate in the commission of the offence. In fact the case has been fabricated against me by the Investigating Agency in collusion with the complainant party. I also place on record attested copy of challan in the case pertaining to the charge against P.W. Muhammad and his two sons pending in the Court of S.D.M., Charsadda, which shows that P.W. Fazli Amin and Muhammad Habib P.W. Or the deceased Hunar Khan were not accused in the said case or were connected in any manner in the trial of the said case. Attested copy of the challan is Exh.D.1. I also place on record attested copy of the application seeking exemption of Luqman and Ahmad Ali sons of P.W. Muhammad which shows that both these persons were not present with P.W. Muhammad in Court nor they had gone to the Court. Both were represented by their counsel, per attested copy of the order-sheet including 14-10-1991. Attested copy of order-sheet is Exh.D.3."
' Admittedly, 14-10-1991 was fixed in the criminal case pending in the Court of Assistant Commissioner, Charsadda, where according to Exh.D.3 Muhammad appeared as an accused, as such this fact that he had gone to attend the case stands established, hence in view of the aforesaid admission, no further proof was required to prove the admitted fact.
3. The occurrence took place in the broad daylight at 11-00 a.m. On the main road, where the complainant party was waylaid by the accused. On their return they were attacked by Raza Khan, the appellant and his absconding co-accused who were named in the very first report specifying their respective roles. P.W. 10 was put a suggestion in cross-examination whether Hunar Khan deceased, P. Ws. Muhammad Habib and Fazli Amin being unarmed accompanied him, he replied in the affirmative. The defence after making such a suggestion to P.W.10 cannot turn around to question the presence of P.W.10 and P.W.11 on the scene of occurrence. He further stated in the cross-examination that after attending the Court, they left for the village in a Bus which further confirms their presence with the deceased. No doubt that the witnesses were closely related to the deceased but merely their close relationship with the deceised would not make them as interested witnesses, rather they were the natural witnesses who happened to be with the deceased when they were attacked. There is consensus of opinion in superior Judicial Authorities that mere relationship of the witnesses with the deceased would not be sufficient to discredit their testimony if otherwise, their evidence inspires confidence. Learned defence counsel urged that many persons from Rahatabad were attracted to the spot after the occurrence but they were neither examined by the police nor cited as witness, would show that they were not supporting the prosecution case.
This argument was least convincing, for, the persons who were attracted to the spot after the occurrence could not give any eye account of the incident and if their statements had been recorded. They would have given hearsay version, so non-examination of those people have no adverse effect on the prosecution case. Moreover, it is common feature that usually people do not offer themselves as witnesses in criminal cases either before the police or the Court to avoid enmities and the rigors of police. Certain suggestions regarding other enmities of Hunar Khan deceased, were put to P. W.10, who frankly admitted that he had other enmities but categorically denied that Hunar Khan deceased was murdered by some unknown persons who were sitting on the top of the Bus. The argument regarding substitution is hardly believable that the appellant and his co-accused have been substituted for the real culprits. The accused were charged by name within half an hour of the occurrence after proper identification, hence there is no question of substitution. It is highly improbable that the deceased's family would have let the real offenders go escort free and would have roped other persons. Appellant himself in his statement recorded under section 342, Cr.P.C. Has not said even a word about substitution. Had he taken plea of substitution, in that case it was for him to establish the same.
4. The medical and the circumstantial evidence on the record also support the prosecution version and there is nothing material to contradict the same. As per pictorial the locale of four entrance wounds measuring 1/4" x 1/4" each, is on left side of chest above sternum within a small area.
According to the evidence and the site plan, the appellant was at point No,5 who fired at the deceased at point No,1 wherefrom blood was collected with cotton. Three empties of .32 bore were recovered which were lying in scattered position near point .No,5 while spent bullet was recovered from point "A" which is in line to point No,
1. The argument that why the complainant and the witnesses were spared by the accused can be answered firstly that the accused persons act according to their own line of action and secondly Hunar Khan deceased who according to record appeared to be a strong headed person was targetted so as to get rid of him. Dr. Abdul Rashid P.W.4 in cross-examination admitted that entry wound No,1 was at a higher level than exit No,5 and likewise entrance wound No,2 was higher than exit No,6. He also admitted that missile of entrance No,1 had moved down from left to right side and made its exit through exit No,5 and same is the position of Nos.2 and 6. The assailant if is taller in height than the victim, in that case even if they stand at the equal level, and shorter in height is targeted. He would be hit at the higher level and the exit would be at downward side. Secondly, if the fire lands on the bony part of the body, then the missile wound change its position making its way out from any direction. The unimpeachable ocular account finds complete corroboration both from medical and circumstantial evidence on the record, which cannot be brushed aside merely on the basis of denial of the allegations by the appellant.
5. The motive alleged in the F.I.R. Was dispute over property and blood feud between the parties.
P.W.10 in the cross-examination admitted that Murad absconding co-accused who is the nephew of the appellant, had charged Hunar Khan deceased for effectively firing at him. So the motive to the extent of blood feud has been proved. Even otherwise inadequacy or weakness of motive would not lend any support to the accused when direct ocular evidence is available in the case. In the same supra authority regarding motive, learned Supreme Court observed as under:-- "Taking the points seriatim, it was to be readily conceded that although a specific motive, namely, the pre-emptive rivalry about the purchase of land was not only clearly alleged in the promptly lodged F.I.R. But was also impliedly admitted by the respondents in their statements, yet it finds not even a passing reference in the judgment of the High Court. Evidence of motive is not only relevant but also often helpful both to the Investigating Agency as well as the Court. Its importance, however, depends on the facts and circumstances of each case. For the police it steers and determines the course of investigation. Its established existence and strong nature proved by reliable evidence when put in the scales alongwith the ocular and other evidence does quite often tend to set at rest some lurking suspicions and satisfy the judicial conscience. Of course there may be cases where even the strongest motive may be wholly inapt owing to absence or weakness of direct evidence. Conversely the weakness of motive or even its conspicuous absence might not be helpful to the accused against whom unimpeachable ocular evidence is available."
6. The accused-appellant absconded after the occurrence and was arrested after more than fifteen months from a "Ghani" in a raid conducted by P.W.3. The abscondence has not been explained plausibly by the appellant in his statement under section 342, Cr.P.C. He stated that he surrendered voluntarily to the Police after learning about the charge against him, which is not at all reasonable and acceptable explanation, and thus this circumstantial evidence also supports the prosecution case. The prosecution has successfully brought home the charge against the appellant through the confidence inspiring testimony of the complainant and P.W. Fazli Amin, cousin and son of the deceased respectively, credence whereto has been lent by the medical and circumstantial evidence. The appellant was rightly found guilty on the basis of aforesaid evidence and was rightly convicted and sentenced which is upheld. Consequently, this appeal being without any merit is hereby dismissed.
' Since the appellant had no direct motive of his own, therefore, the sentence of life imprisonment awarded to him, meets the ends of justice and as such Criminal Revision No,117 of 1994 is accordingly dismissed.
(Sd.)
' Mian Muhammad Ajmal ' KHALIDA RACHID, J.--- Appellant Raza Khan son of Gul Said aged 50/55 years resident of Nisatta Charsadda was tried by the Additional Sessions Judge, Charsadda, under section 302/324/34, P.P.C. For the murder of Hunar Khan and for attempt to commit murder of Muhammad, complainant (P.W.10), Muhammad Habib (not produced) and Fazli Amin (P.W.11). He was convicted under section 302, P.P.C. Read with section 34, P.P.C. For the murder of Hunar Khan and awarded life imprisonment and a fine of Rs,50,000 which, after realisation, shall be paid to the legal heirs of the deceased as compensation within the meaning of section 544-A, Cr.P.C. Or in default thereof to suffer further 2 years' S.I. Under section 324/34, P.P.C. For attempt to murder aforesaid P. Ws. The appellant was convicted and sentenced to one year (on three counts) with fine of Rs,5,000 each.
Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant.
2. The occurrence took place on 14-10-1991 at 11-00 hours when complainant, Muhammad, accompanied by Hunar Khan (deceased), his cousin Muhammad Habib and Fazal Amin, his relatives, after attending the Court of A.C. Charsadda in a case under section 307, P.P.C. Had proceeded to their village. While deboarding the bus at Rahat Abad, they were fired at by Raza Khan, appellant, Murad and Zahoor (absconding accused) with their pistols. The fire shots of Raza Khan, appellant, effectively hit the deceased leaving him dead on the spot. The motive is stated to be previous blood feud on a dispute of landed property.
3. After necessary investigation, complete challan was put in Court against the appellant while remaining two accused, namely, Murad and Zahoor, who absconded after the incidence, were proceeded against under section 87/204, Cr. P .0
4. The incident was registered vide F.I.R. No,266, dated 14-10-1991 at 11-30 hours (Exh.P.A.) which was recorded by Moharrir/H.C. Taj Mir (P.W.5) when the dead body of Hunar Khan was brought to Police Station Nisatta. He has also prepared inquest report (Exh.P.C./1) and injury-sheet (Exh.P.C.) and sent the dead body to the Civil Hospital, Charsadda, under the escort of Naseem Khan (P.W.6). On the same day at 1-30 p.m. Dr. Abdul Rashid, M.O. D.H.Q.
' Hospital, Charsadda (P.W.4) conducted autopsy on the dead body of the deceased and found the following:-- "External examination R.M. Not present
(1) Fire-arm entrance wound lateral and above the sternum, size 1/4" x 1/4"
(2) Fire-arm entrance wound size 1-1/4" x 1-1/4" on left side below wound No,l.
(3) Fire-arm entrance wound 1-1/4" x 1-1/4" on sternum.
(4) Fire-arm entrance wound 1-1/4" x 1-1/4" above the sternum.
(5) Fire-arm exit wound 1-1/4" x 1-1/4" on renal angle.
(6) Fire-arm exit wound 2" below wound No, 1 . By this No,1, I meant to exit No,1 which has been given serial No,5 in this statement.
Internal examination ' Stomach which contained semi-digested food, was half full and was injured. Kidney was also injured while the bladder was full of urine. Walls, ribs and cartilages fractured at site of inlet injury.
Pleurae, lyranx, tracheas, both lungs, pericardium, heart and blood vessels were injured."
' In the opinion of the doctor the cause of death was shock and haemorrhage as a result of fire- arm injury to the vital organs such as heart and lungs. Two bullets were recovered from the dead body which were under the skin. No,1 was below the left nipple and No,2 was recovered from renal angle.
' Rizwanullah I.H.C. (P.W.2) is a marginal witness to recovery memo. (Exh.P.B./3) vide which the garments of the deceased were produced by the F.C. To the Investigating Officer Hassan Khan, S.-I.
(P.W.3) arrested the appellant, with .30 bore pistol and bandolier containing 15 rounds, on 31-1-1993, from the Sugar Crushing Machine of one Saifur Rahman during the course of raid in village Talab Koroona. Shahid Khan, S.H.O. Mandani (P.W.7) submitted complete challan in the Court. Lal Zarin (P.W.8) a co-villager identified dead body of Hunar Khan, deceased, at the time of post-mortem examination. Khaki Shah (P.W.9) is marginal witness to recovery memo. Exh.P.B./1 vide which the Investigating Officer took into possession three empties of .32 bore and one spent bullet from the spot. He has also testified to the correctness of recovery memo. Exh.P.B./2 by which blood-stained earth was picked up from the spot. Muhammad (P.W.10) complainant has confirmed what has been alleged by him in the F.I.R. (Exh.P.A.) Fazli Amin (P.W.11) has furnished eye-witness account of the occurrence. Javed Khan, S.-1. (P.W.12) is the Investigating Officer of this case. He, after receipt of the information of the occurrence through wireless, rushed to the spot and recovered 3 empties of .32 bore (Exh.P.1) and one spent bullet (Exh.P.2) and packed them into parcel (Exh.P.B./1), prepared the site plan (Exh.P.B.) at the direction and instance of complainant and eye-witness, recovered the blood-stained earth from the spot vide Exh.P.B./2. He also recorded the statements of P.Ws. Under section 161, Cr.P.C. And took into possession the blood-stained clothes and one spent bullet recovered from the dead body of the deceased through recovery memo. Exh.P.B./3. Through applications (Exh.P.E. And Exh.P.E./1) he obtained warrants under section 204, Cr.P.C. And section 87, Cr.P.C. Against the absconding accused.
5. The appellant when examined under section 342, Cr.P.C. Denied all the incriminating allegations against him and professed his false involvement in the case. However, the learned Additional Sessions Judge, Charsadda, after assessing and evaluating the evidence, convicted and sentenced the appellant as aforesaid, aggrieved of which appellant preferred Criminal Appeal No,275 of 1994 while complainant filed Criminal Revision No,117 of 1994. The case came up for hearing before a Division Bench of this Court consisting of Mr. Justice Mian Muhammad Ajmal and Mr. Justice Jawaid Nawaz Khan Gandapur. The Criminal Revision was disallowed by both the Honourable Judges. However, on criminal appeal, one Honourable Member of the Bench (Justice Jawaid Nawaz Khan Gandapur), accepting the appeal, ordered the acquittal of the appellant while the other Honourable Member (Justice Mian Muhammad Ajmal) maintained the conviction and sentence awarded by the learned Additional Sessions Judge, Charsadda.
6. The case has now been referred to me by the Honourable Chief Justice under section 378 read with section 429, Cr.P.C. For decision afresh.
7. Mr. Assadullah Khan Chamkani, Advocate, appeared for the appellant while Mr. M. Zahurul Haq, Advocate, for complainant assisted by Mr. Riaz Ahmad Khan, Assistant Advocate-General for the State, pleaded for complainant.
8. At the very inception of the arguments the issue of jurisdiction of this Bench acting as a third Judge was raised whether it would be limited to a decision on the appeal only since the revision has unanimously been disallowed by both the Honourable Judges of the Division Bench.
9. Mr. Assadullah Khan Charnkani, Advocate, was in favour of confining the arguments only to the extent of conflicting views of the Honourable Members whereas Mr. M. Zahurul Haq, Bar-at-Law, was of the opinion that since third Judge is to form his opinion independently on dissenting views, therefore, decision on the Criminal Appeal as well as Criminal Revision has to be delivered afresh. The precedent cases referred by the learned counsel for the parties in support of their claims are as follows:.--
(1) PLD 1971 Lah. 292 and 708,
(2) PLD 1963 Kar. 92,
(3) AIR 1953 Orissa 160,
(4) 1983 PCr.LJ 72,
(5) AIR 1959 Andh. Pra. 313,
(6) PLD 1954 Sindh 49,
(7) AIR 1952 Orissa 37.
10. After lengthy discussion and going through the authorities produced by the learned counsel and considering the Ratio Decidendi of the case-law, I reached to the conclusion that the third Judge has full authority to hear the case afresh in toto and decide the case on its entirety. Third Judge needs to evaluate and weigh each and every point and has to examine the whole case afresh so as to form pinion in the case and deliver decision as is deemed fit to his/her own satisfaction depending on evidence produced by the parties. If the case is proved and the third Judge arrives at a conclusion that normal penalty of death be awarded the dismissal of the criminal revision by the Honourable Members of dissenting Bench will not be considered an impediment to the enhancing of the sentence. It would be best to quote some paras. From the judgment of Attaullah Sajjad, J. Reported as Muhammad Sharif v. State PLD 1971 Lah. 708 to whom the case was referred under section 429, Cr.P.C. For the reason of difference of opinion between Shamim Hussain Kadri, J. Who had ordered the acquittal of accused person while Muhammad Afzal Zullah, J. Found the accused guilty and confirmed the sentence of the death imposed on him by the Sessions Court. The relevant paras. Read as under:- "(10)1 may state here that under section 429, Cr.P.C. The reference to the third Judge is with regard to the whole case and the judgment or order is to follow his opinion. This opinion need not be in agreement or at variance with one of the Judges on account of whose difference of opinion of reference has been made. It has to be an independent assessment of the case including the question of sentence. Reference in this connection may be made to Sarat Chandra Mirra v.
Emperor (1) Emperor v. Dukari Chandra Karmakar (2), Ahmad Sher and others v. Emperor (3) Daulat Ram v. Emperor (4) In re: Ravipati Sitaramayya (5) Abdur Raziq v. The State (6) and Mohim Mondal v. The State (7).
(11) Out of the above cases, the cases of Sarat Chandra Mitra v. Emperor, Emperor v. Dukari Chandra Karmakar and In re: Ravipati Sitaramayya, directly dealt with the question of sentence. In Dukari Chandra's case, referred to above C.C. Ghose, J. To whom the case had been referred as third Judge under section 429, Cr.P.C. Referred to the opinion of Woodroffe, J., which was to the effect that if two Judges are in disagreement over the question of sentence, one favouring the death penalty and the other transportation for life, that in itself may be a sufficient ground for holding that the death penalty should not be imposed. The learned Judge, however, thought that the rule enunciated by woodroffe, J. Was not inflexible and that the third Judge should decide for himself whether the case before him was or was not a fit one for the imposition of the death penalty. In Ravipati Sitaramayya's case it was held that it was the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him. It was observed by Samasundaram, J., that- ' When on a difference of opinion a case is referred to a third Judge no fetter can be placed on the third Judge. He is at liberty to express and act upon the opinion which he himself arrives at. If he chooses, he can pass a sentence of death, even though one Judge favours an acquittal and the other gives a sentence of transportation for life when convicting the accused'.
' While examining the scope of a reference made under section 429, Cr.P.C. Mookerjee, J. Observed in the case of Sarat Chandra Mitra, as under-- ' An such a contingency, what is laid before another Judge is, not the point or points upon which the Judges are equally divided in opinion, but the 'case'. This obviously means that so far as the particular accused is concerned, the whole case is laid before the third Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three Judges for instance, at the original hearing of the appeal, one Judge may consider the prisoner not guilty and other Judge may consider him guilty under one section of the Indian Penal Code, and liable to be punished in a certain way; the third Judge may find him guilty under a different section and pass such sentence as he thinks fit'.
' I respectfully agree with the above observations and hold that I am entitled to determine the question of sentence, notwithstanding the confirmation of death by Muhammad Afzal Zullah, J."
11. Arguing the case on merits Mr. Assadullah Khan Chamkani, advocating for the acquittal of Raza Khan, appellant, contended that eye-witness, Muhammad complainant (P.W.10) and Fazli Amin (P.W.11) who are related to the deceased are interested and inimical, though not directly, but towards the family of the accused, therefore, it is necessary that there should have been other piece of corroboration to test and check the veracity and credibility of their testimony. Referring to certain discrepancies in the statements of these witnesses, the learned counsel contended that their presence at the spot at the time of occurrence was improbable. The medical evidence, it is further urged, also does not support the prosecution story. Similarly, he argued, that the recovery of empties from the place of incident which is a very busy road, casts shadow of doubt on the prosecution version. As for motive, the learned counsel submitted that motive set out in the F.I.R.
(Exh.P.A.) is not clear as to against which of the accused the enmity is claimed because the word " " mentioned in first information report does not specifically and individually identify the accused.
12. Mr. M. Zahurul Hach Bar-at-law, appearing for the complainant, on the other hand, contended that in the absence of any enmity against the appellant, as also claimed by the appellant himself, there appeared no reason for the complainant to falsely implicate the appellant in a case of murder. The learned counsel maintained that statements of P.Ws. Are not only consistent and in consonance but confidence inspiring which have successfully brought home the charge of murder of Hunar Khan (deceased) to the appellant. He also claimed that there is no inflexible rule that statements of interested witnesses being relatives of the deceased can never be accepted without corroboration.
13. I have very carefully attended to the submissions advanced by the learned counsel for the parties and have exhaustively gone through the record of the case.
14. The fate of this case hinges primarily on the ocular version and medical evidence.
15. The ocular account of the case has been furnished by Muhammad complainant (P.W.10) and Fazli Amin (P.W.11). The complainant reiterating the version narrated in the F.I.R. (Exh.P.A.) stated that on the morning of the eventful day he had gone to the Court of Assistant Commissioner, Charsadda to attend a case under section 307, P.P.C. Registered against him and his two sons, Luqman and Ahmad Ali. He was accompanied by his cousih Hunar Khan (deceased) and two of his relatives Fazli Amin (P.W.11) and Muhammad Habib (not produced). After attending the Court of A.C.
They left for their village Nisatta in a Bus. It was 11-00 a.m. When they deboarded the bus at Rahatabad. Raza Khan, appellant, Murad and Zahoor (absconding accused) duly armed with pistol, who had waylaid them, opened fire at them instantaneously. The fire shots of Raza Khan (appellant) effectively hit Hunar Khan (deceased) leaving him dead on the spot. The accused decamped after the occurrence. They took the dead body of the deceased to Police Station Nisatta where they lodged the report at 11-30 a.m. Similar statement was given by Fazli Amin (P.W.11) supporting the prosecution story narrated in F.I.R. (Exh.P.A.) There is no denial of the fact that both these witnesses are closely related to Hunar Khan (deceased) but mere relationship of the P.Ws.
With the deceased would not render the statements of these witnesses unworthy of credence if otherwise found intrinsically true and sound. Reference can be made to 1969 SCMR 64, PLD 1962 SC 269, 1973 PCr.LJ 186 and 1972 PCr.LJ 107. The learned counsel for the appellant referred to certain irregularities in the cross-examinations of these eye-witnesses and was emphatic that the statement of complainant (P.W.10) in the terms that his sons Luqman and Ahmad Ali at the call of the case had entered the Court room alongwith him stood negated by Fazli Amin (P.W.11). He also took exception to the registration of case within span of half an hour at 11-30 a.m. When the distance between the spot and police station is 2 kilometres. He also referred to statement of Javed Khan, Investigating Officer (P. W.12) that he had reached the police station at 12-00 noon to whom the report was lodged by the complainant. The report is admittedly recorded by Moharrir Taj Mir (P.W.5) who had also stated that at the time of recording of the report P.W. Javed was in Charsadda Is who was informed about the occurrence on wireless. The promptly lodging of F.I.R.
Rather certifies the exclusion of any question of substituting the appellant for any other assailants.
However, these inconsistencies referred to by the learned counsel for the appellant are minor and of inconsequential nature and would not affect material evidence of the eye-witnesses. We have been coming across cases where these minor contradictions do occur due to lapse of time and ' if due weight is given to these types of irregularities there would be hardly any conviction. If convictions are influenced by such discrepancies, justice would not be done to the victims and many of the accused would be let loose.
16. As to the exception of the learned counsel for the appellant as to why Hunar Khan (deceased), Fazli Amin (P.W.11), Muhammad Habib (not produced) had accompanied the complainant to the Court of Charsadda when they were neither accused nor witnesses in the case, it is very common practice among the villagers that in a criminal case an accused is always accompanied by his relatives or friends either to give him moral support or to provide protection and there is nothing unusual about it.
17. The eye-witnesses, Muhammad (P.W.10) and Fazli Amin (P.W.11) advanced reasonable and plausible explanation of their presence on the scene at the time of occurrence. The ocular account furnished by these witnesses remained unimpeachable which consistently testified to the prosecution story.
' Their description of occurrence has been corroborated by the medical evidence and recoveries from the spot. The appellant has been singled out for effective shots in the F.I.R. Which is lodged without loss of any time which excludes the possibility of deliberation and false implication.
18. This brings me to look into medical examination of the deceased.
' According to Dr. Abdur Rashid (P.W.4) and also as shown in the pictorial (Exh.P.M./1), the deceased received as many as four entry wounds on his chest which are injuries Nos.1, 2, 3 and 4 while injuries Nos.5 and 6 are exit wounds corresponding to entry wounds Nos.1 and 2, respectively. The location of entry wounds Nos. I and 2 being on higher latitude agitated the mind of the learned counsel for appellant who maintained that the deceased was fired at by assailant who were on higher pedestal than the deceased. According to the learned counsel, had the deceased been fired at by the appellant who was allegedly at the same level and at the distance of 3 paces, the exit wounds would have been right at the back of the deceased. This assessment of the learned counsel is not correct. It is proven from the medical jurisprudence that the missile of the bullet may take an uncertain course turning towards different directions after hitting a bony structure or hard tissue of the body Dr. C.K. Parikh in his Textbook of Medical Jurisprudence and Toxicology (Second Edition at page 287) held:-- "When a bullet makes entry into the human body, it first stretches the skin, then effects penetration of the skin, and subsequently depending upon the energy, effects penetration into soft tissues or bones, and either lodges in the body or comes out causing an exit wound."
' It is further observed (at page 292):-- "The bullet may take a very erratic and circuitous course when it meets with resistance, such as hitting bone, while passing through the body."
' Similarly, Dr. N.J. Modi in his "Modi's Textbook of Medical Jurisprudence and Toxicology (Twenty-first Edition at page 223) spelled out:- "The question regarding the direction of fire, whether from right to left or from front to back is of medico-legal importance. To ascertain this it is necessary to know the position of the victim at the time of the discharge of the bullet, when a straight line drawn between the entrance and exit wounds and prolonged in front should indicate the line of direction. In some cases it is difficult to determine the direction as the bullet is so often deflected by the tissues that its course is very irregular."
' Dr. Abdur Rashid (P.W.4) in his statement has verified that walls, ribs and cartilages fractured at the side of the inlet injury. The medical evidence testified and corroborated the ocular account of prosecution witnesses as there is no inconsistency with regard to the injuries caused by the appellant on the person of the deceased. The dimension and location of all the four injuries are 1- 1/4" x 1-1/4" which show that they have been caused by a single person. The recovery of 3 empties (Exh.P.1) and one spent bullet (Exh.P.2) from the scene of occurrence has also been disputed by the learned counsel for the appellant. He argued that recovery from the spot which is busy road is highly doubtful. In his view these 3 empties were planted by the prosecution so as to bring it in conformity with the number of injuries on the person of the deceased. In some circumstances the recoveries of the empties from such a busy place of occurrence, no doubt, become difficult but that is not always the case. The people usually avoid to cross the place where the occurrence has taken place. Presence of blood-stained earth (Exh.P.2) confirmed the spot of occurrence which is enough to discredit the stand taken by the learned counsel for the appellant. It was also the anxiety of the learned counsel for the appellant that the points wherefrom spent bullet was recovered and the bus was present on the scene at the time of occurrence were not given in the site plan (Exh.P.B.). It would again be observed that it is mere omission of points of empties is not fatal to the prosecution case. As far as omission of point of bus in the site plan (Exh.P.B.) is concerned it is the case of the prosecution that the incident took place when the bus had left the scene. It has also been argued by the learned counsel for the appellant that no motive has been established against the appellant. It is alleged that the mention of motive given in F.I.R. Is not clear, that it is not made known as to against which the complainant claimed enmity of the deceased.
Muhammad, complainant (P.W.10) in his cross-examination had categorically admitted the existence of enmity between the deceased and Murad (absconding accused) nephew of the appellant for charging the deceased for effectively firing at him (Murad). Though there may not be direct motive against the appellant but enmity of blood-feud stands proved against the family of the appellant. Even otherwise motive in criminal cases is not always material. Its weaknesses would I not damage the credibility of the prosecution case if direct ocular evidence is sufficiently available to prove the guilt of an accused person.
19. The appellant has been categorically singled out for effectively firing at the deceased. There seems no reason for the substitution of the appellant for the real culprits. It has been held in host of authorities of the Apex Court of the country that where single person is charged for effective firing then the substitution is a rare phenomenon. The Supreme Court while agreeing with the finding of the High Court in Muhammad Ayub alias Nikka v. State PLD 1983 SC 27 cited the following para from the High Court judgment:- "In a single accused case the eye-witnesses in such a situation could not be expected to substitute the present appellant for the actual assailant. For false substitution or implication, there must be very strong motive cn the part of the eye-witnesses which is missing in the instant case. It is not denied that now-a-days in a case of single culprit substitution is very rare phenomenon."
' Similarly, in Kauro v. The State 1981 PCr.LJ 872 it is observed:-- "Criminal trial---Substitution---Case of a single accused---Substitution in such a case can hardly be conceived---Especially when the deceased, accused and the eye-witnesses belong to same place and very well known to each other."
' The appellant absconded after the commission of offence and was arrested during the raid on 31- 1-1993 after 15/16 months from Sugar Crushing Machine (Ganai) in Village Talab Koroona. No doubt abscondence is not a substantive piece of evidence but it adequately would lend support to the A prosecution case if corroborated by other circumstantial evidence of independent nature.
20. As for evidence of disinterested persons, in such-like incidents private witnesses often keep away to involve themselves and to incur the enmity of accused persons.
21. It is also argued that prosecution could not prove the hearing of case in the Court of A.C., Charsadda on the eventful day, therefore, presence of complainant and eye-witnesses was not probable. It is unbecoming of the appellant to raise this objection when he himself produced photocopy of order-sheet (Exh.D.3) in his statement showing the presence of the complainant in the Court of A.C. Charsadda on 14-10-1991.
In the result agreeing with the learned Additional Session Judge, Charsadda, the appellant is found guilty of committing murder of Hunar Khan, deceased. As regards quantum of sentence, it has already been held above that no motive directly against the appellant is proved, therefore, the sentence of imprisonment for life would meet ends of justice. Hence both Criminal Appeal and Criminal Revision stand dismissed.