' This appeal is directed against the judgment dated 3-2-1991 passed by Mr. Allauddin Arshad, Additional Sessions Judge, Mianwali whereby he convicted Saleem Khan aged 24 years, Caste Pathan, resident of Kamarmashani, Tehsil Eisakhel District Mianwali under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,10,000 or in default thereof R.I. For two years.
It was further ordered that if the fine is realised, half of the amount shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the accused/ appellant.
2. Briefly stated the facts are that on 13-12-1988 at 12-30 noon, Nazir .Muhammad complainant alongwith his brother Mushtaq Khan and Rafiullah son of Khan Zaman, Faiz Muhammad son of Muqarab Khan were having tea sitting on a cot at the hotel of Muhammad Ali, situated at Bus Stand Kamarmashani. Saleem Khan accused/appellant and Khizar Hayat (acquitted accused) armed with .12 bore pistols came there. Khizar Hayat kept remained standing at some distance while Saleem Khan Accused stood on their back and fired with his pistol, which hit Mushtaq Khan on his shoulder. Thereafter, both Saleem Khan and Khizar Hayat fled towards their house. Mushtaq Khan rose up from the cot, but fell down due to injuries sustained by him. He was then removed by the complainant alongwith Rafiullah and Faiz Muhammad to Police Station, where he succumbed to the injuries, as soon as he reached there. The. Motive behind this occurrence is that in February, 1984 Mushtaq Khan deceased had caused gunshot injuries to Khizar Hayat and a case under section 307, P.P.C. Was pending against him. To take revenge of that, both Saleem Khan and Khizar Hayat in furtherance of their common intention committed the murder of deceased Mushtaq Khan.
On the statement of Nazir Muhammad complainant (P.W.9), F.I.R. Exh.P.F. Was recorded by Nazar Hussain Shah, S.H.O. (P.W.11) Police Station Kamarmashani. He prepared statement of injury and inquest report of the deceased Exh.P.H. And Exh.P.J. Respectively and despatched dead body through Ata Muhammad, Constable (P.W.1) and Ali Muhammad, Constable (P.W.3) for post- mortem examination. He then proceeded to the place of occurrence and collected blood-stained earth and made a sealed parcel of the same vide memo. Exh.P.G. And prepared rough site plan Exh.P.K. After the post-mortem examination, Ali Muhammad, Constable (P.W.3) brought last-worn clothes of deceased P.1 to P.3 alongwith a sealed phial, which he produced before the Investigating Officer who secured the same vide memo. Exh.P.A. On 16-12-1988 he got site plans Exhs.P.B. And P.B./1 prepared from Mirza Zahiruddin, Draftsman (P.W.4) and secured the same on 21-12-1988. On 21-12-1988 he arrested accused Saleem Khan while he was in possession of unlicensed carbine P.6 and live cartridges which he secured vide memo. Exh.P.E. He also prepared rough sketch of place of recovery Exh.P.E./1. On 22-12-1988 he arrested accused Khizar Hayat who on 26-12-1988 led to the recovery of carbine P.4 and live cartridge P.5 which he secured and made sealed parcel of the same vide memo. Exh.P.G. And also prepared site plan of place of recovery Exh.P.G./1. He then completed investigation and challaned the accused.
3. A charge under section 302/34, P.P.C. Was framed against both the accused Saleem Khan and Khizar Hayat (since acquitted), to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, prosecution examined P.W.1 Ata Muhammad, Constable who was given a sealed parcel of bloodstained earth by Ghulam Qadir, A.S.-I./Moharrir on 14-12-1988 for onward transmission to the Office of Chemical Examiner which he delivered there intact. P.W.2 Muhammad Iqbal, Constable was given a sealed parcel of pistol on 21-12-1988, which he delivered in the Office of Forensic Science Laboratory on 23-12-1988. P.W.3 Ali Muhammad, Constable was handed over.Dead body on 13-12-1988 for taking to the mortuary. After the post- mortem examination he was handed over last-worn clothes of deceased P.1 to P.3 and a sealed phial which he produced before the Investigating Officer who secured the same vide memo.
Exh.P.A. P.W.4 Mirza Zahiruddin, Draftsman visited the place of occurrence on 16-12-1988 and handed over site plans Exhs.P.B. And P.B./1 on 21-12-1988 to the Investigating Officer. P.W.5 Muhammad Sharif, A.S.-I. Attested memo. Of recovery Exh.P.C., through which pistol P.4 and live cartridge P.5 and secured which were produced by accused Khizar Hayat. P.W06 Dr. Sher Ali Khan conducted the post-mortem examination on the dead body of Musthaq Khan son of Ghulam Muhammad Khan aged 33 years on 13-12-1988 at 4-00 p.m. He found nine wounds of injury of fire- arm on the back of left chest in an area of 8 c.m. x 6 c.m, 24 c.m. Below acromiom process and 24 c.m. Above iliac spine 13 c.m. Away from mid-line. 8 c.m. Posterior to left nipple. The edges of the wound were inverted. These were round and oval in shape. The wounds were not oblique. In his opinion the cause of death was due to shock and haemorrhage which was sufficient to cause death in the ordinary course of nature. Injury was ante-mortem and was caused by a fire-arm. The probable time between injury and death was 15 minutes i,e, immediate and between death and post-mortem was within 3-1/2 to 4-1/2 hours. He issued correct carbon copy of Post-mortem Examination Report Exh.P.D. And sketch Exh.P.D./1 which bear his signatures. P.W.7 Ghulam Qadir, A.S.-I. Deposed that on 13-12-1988 he was given a sealed parcel containing blood-stained earth by Nazir Inspector for keeping the same in Malkhana. On 14-12-1988 he handed over the same to Ata Muhammad, Constable for onward transmission to the Office of Chemical Examiner, Lahore. On 20- 12-1988 he was again given a sealed parcel of pistol which he delivered to Muhammad lqbal, Constable on 21-12-1988 for forwarding it to the Office of Forensic Science Laboratory, Lahore. P.W.8 Amir Muhammad deposed that Nazar Hussain, Inspector conducted the personal search of accused Saleem Khan and secured pistol P.6 and a live cartridge P.7 and made into a sealed parcel vide memo. Exh.P.E. Which bears his signatures. P.W.9 Nazir Muhammad is the complainant and has supported the prosecution version appearing in complaint Exh.P.F. He further deposed that he had identified the dead body at the time of post-mortem examination. P.W.10 Faiz Muhammad is an eye-witness of this occurrence and has corroborated the prosecution version appearing in F.I.R. Exh.P.F. He further deposed that on the same day he joined the police investigation and Investigating Officer collected blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.G. P.W.11 Nazar Hussain, Inspector is the Investigating Officer of this case, whose evidence has already been discussed above. The learned S.P.P. Produced reports of Chemical Examiner Exh.P.L., Serologist Exh.P.M. And Ballistic Expert Exh.P.N. And then closed the case for prosecution vide his statement, dated 5-1-1991.
5. In his statement under section 342, Cr.P.C. The accused Khizar Hayat (since acquitted) denied the prosecution version and stated that he voluntarily appeared before the police, as soon as he'came to know that a false case has been registered against him. He denied the recovery of pistol P.4 and live cartridge P.S. He asserted that the deceased was bad character, dangerous and desperate person who had enmity with so many persons; that deceased attacked him in February, 1984 and was facing trial which was still pending at that time and he had no motive to commit his murder, that all the P. Ws. Are related inter se and Faiz Muhammad Khan P.W. Is a pocket witness of the complainant. He further stated that he is innocent and was declared as such during the investigation. He stated that he would not record his statement under section 340(2), Cr.P.C., however, he would produce evidence in his defence. In his statement under section 342, Cr.P.C.
Accused Saleem Khan also denied the prosecution version and corroborated the statement of his co-accused to the extent of registration of criminal case against the deceased for causing injury to his co-accused Khizar Hayat. He further stated that he appeared before police voluntarily on coming to know about the registration of this case. He denied the recovery being fake and planted one. He also corroborated the statement of his co-accused Khizar Hayat regarding the character of deceased etc. He also stated that he will not record his statement under section 340(2), Cr.P.C.
But would produce evidence in his defence. Accordingly he produced copies of reports Exh.D.A. To Exh.D.J. And closed his defence evidence vide his statement, dated 14-1-1991. The accused Khizar Hayat chose not to produce any evidence and closed the defence vide statement of even date.
6. After going through evidence brought on record, the learned trial Court acquitted Khizar Hayat accused whereas convicted Saleem Khan accused vide judgment under appeal. A Criminal Revision No,212 of 1991 has also been filed by Nazar Muhammad complainant challenging the acquittal of Khizar Hayat accused. As both the appeal and criminal revision arise out of same judgment, so these are being disposed of by this single judgment.
7. Arguments have been heard and record gone into with the assistance of learned counsel for the appellant as well as for the complainant assisted by the learned counsel for the State.
8. Learned counsel for the appellant has disbelieved the motive set up by the prosecution and same is case with regards to evidence of recovery of pistol at the hands of instant appellant. He argued that prosecution case, thus, rests upon ocular account as well as medical evidence. While touching ocular account, he submitted that it consists of statement of P.W.9 Nazir Muhammad complainant as well as P.W.10 Faiz Muhammad who are related inter se, as P.W.I0 Faiz Muhammad admits that wife of Nazir Muhammad (P.W.9) is his sister's daughter. Thus, the statements of P.W.9 and P.W.10 cannot be made base for passing an order of conviction without independent corroboration which is lacking in the instant case. His contention is that instant case is a case of hit and run and none had seen this incident and that both the complainant Nazir Muhammad (P.W.9) being brother of deceased has been set up as complainant, whereas P.W.10 Faiz Muhammad, being a relative of P.W., has been set up an eye-witness of the alleged occurrence. He argued that as per prosecution version, incident took place at 12-30 noon and that too at the hotel of Muhammad Ali, situated in a populated area, but no independent witness has either been cited or examined to support the prosecution version. This non-examination of any independent and uninterested witness on the part of prosecution, makes the case doubtful. He argued that even the presence of P.Ws. 9 and 10 is not free from doubt. The presence of these P.Ws. Alongwith that of deceased has been shown for the purpose of taking tea. He submitted that house of complainant being at a distance of 250 Karams, away from the said hotel, question of sitting there for having tea does not appeal to reason, as tea could be had even in the house. That if the stand of prosecution is accepted that incident took place at 12-30 noon, then why none from the adjoining shops came forward to support the prosecution case, though shops are there as per site plans Exhs.P.B. And P.B./1 prepared by P.W.4 Zahiruddin, Draftsman. He further argued that character of P.Ws.9 and 10 is nothing but that of chance witnesses, as they could take tea in their houses situated at a distance of 250 Karams from the said hotel. Again the admission of P.W.9 that they did not raise any alarm on seeing the accused is also very unnatural and this tact further shows that they were not present on the spot, otherwise they must have raised an alarm on seeing the accused standing near them duly armed with pistols. Again the stand of P.W.9 that none except him and P.W. 10 was attracted on hearing the fire shot, does not seem plausible, as had the incident taken place as alleged by them, various other persons must have been attracted on the spot. So far as P.W.10 Faiz Muhammad is concerned, he submitted that his evidence is that of an interested witness as he had been appearing as witness on behalf of deceased Mushtaq Khan filed against other. He submitted that deceased was a man of questionable character and was of desperate criminal as various F.I.Rs, had been registered against him and some of which are Exhs.D.A. To D.J.
That deceased was done to death by one of his enemies and accused/appellant has been involved in this case falsely.
9. Learned counsel for the appellant also assailed the impugned judgment on the principle of indivisibility of credulity of prosecution witnesses. His contention is that as the trial Court has not believed the statements of P.Ws. Regarding motive aspect as well as involvement of Khizar Hayat, hence their statements can be relied upon to the extent of appellant Saleem Khan. That as the place of occurrence is at the hotel of Muhammad Ali, where other customers were present and they have not been examined, so the presumption shall be drawn against the prosecution.
10. Regarding medical evidence, he submitted that it does not corroborate the prosecution version to the extent of identity of accused. Hence it cannot be inferred from the medical evidence that accused/appellant has caused injuries on the person of deceased. That had some crime empty been recovered from the place of occurrence and had the same been matched with the pistol P.4 recovered from the appellant it could be of some help to the prosecution. However, this is not the case of prosecution. Hence the evidence of recovery of pistol at the hands of appellant does not strengthen the prosecution case. He, thus, submits that prosecution has failed to prove the case against the accused/appellant beyond reasonable doubt, as such appeal may be accepted and appellant may be acquitted.
11. On the other hand, learned counsel for complainant submits that incident took place at 12-30 noon on 13-12-1988, whereas report was lodged at 12-45 noon, on the same day, when the distance between the place of occurrence and police station is 500 yards, so this promptness in lodging F.I.R. Rules out any possibility of false implication as well as of substitution. He argued that this promptness on the part of complainant, also proves his presence on the spot as well as that of P.W.10 Faiz Muhammad. Had they (P.Ws.9 and 10) not been present on the spot, how they could remove the dead body within 15 minutes of incident to the police station and get the case registered against them. That it has come on record that house of complainant was 250 Karams from the place of occurrence, so if he had been present in his house at that time, he could not reach within 15 minutes at the police station and that too with the dead body of the deceased. That again the incident having taken place at broad daylight, the question of false implication of accused does not arise. Even the part assigned to the accused clearly speaks about their involvement and the presence of P.Ws. He submits that presence of complainant and P.Ws. Has been accepted in similar circumstances and relied upon Muhammad Yar v. The State 1997 SCM R
401. That oral account furnished by the complainant is a natural and presence of eyewitnesses could be doubted one and relied upon Riaz Muhammad and another v. The State 1997 PCr.LJ 368 (Lah.) He submitted that learned counsel for the appellant has challenged the evidence of P.W.10 on the ground that he being a witness in another case lodged at the instance of deceased. He argued that mere fact that a witness has been appearing as witness in other criminal cases does not effect his credibility and relied upon Nazir Ahmad and another v. Muhammad Siddique and another 1995 SCM R 1740 and Iftikhar Hussain and another v. The State PLD 1983 Pesh.
37. He further submitted that it has been argued that as other witnesses of the vicinity have not been examined, so this fact also tells upon the bona fide of prosecution and makes the prosecution case doubtful. He submitted this non-examination does not make the case doubtful and relied upon Muhammad Ahmad and another v. The State 1997 SCM R 89. Regarding hit and run theory propounded by the learned counsel for the appellant, he submits that, both the accused are residents of the same village and they are known to each other and incident having taken place at broad daylight and that too in a very busy place, the question of hit and run away of the assailants does not ring true. He further submitted that appellant was armed with pistol and fired from a close range and this aspect of prosecution version stands corroborated from medical evidence of Dr. Sher Ali Khan (P.W.6). That it has been admitted by P.W.6 that injuries had been caused from a distance of 15 to 20 feet and this admission further corroborates the prosecution case.
12. Regarding principle of indivisibility of credibility of a witness, he submitted that in the instant case, statements of P.Ws.9 and 10 have not been believed to the extent of Khizar Hayat (since acquitted) and this does not mean that their statements cannot be believed to the extent of Saleem Khan appellant. That there is no doubt that under such circumstances, corroboration is necessary if the statements of such witnesses are to be relied upon. That the said corroboration has come on record in the form of medical evidence, as referred above. That as such, there is no force in this appeal and the same be dismissed.
13. While arguing Criminal Revision No,212 of 1991 he submitted that Trial Court has acquitted Khizar Hayat on the ground that he has been found innocent and was not assigned any active role in this case. His contention is that opinion of Police Officer is not binding on the Court, and as none of said witnesses who appeared before Investigating Officer during investigation appeared before the Court, so the trial Court was not justified in acquitting him. Regarding the quantum of sentence awarded to Saleem Khan, he submitted that the deceased was done to death in a very callous manner and there were no extenuating circumstances, so the normal penalty of death should have been awarded to the appellant. He thus, submitted that criminal revision may be accepted.
14. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant as well as for the complainant assisted by the learned counsel for the State. I find that contentions raised and submissions made on the part of learned counsel for the appellant are neither fortified nor plausible and thereby do not make the prosecution case doubtful. First contention of the learned counsel for the appellant is that as prosecution has failed to prove motive set up in the F.I.R., so it makes the entire case doubtful. There is no force in this submission and same is brushed aside. There is no doubt that if a specific motive is set up, then the onus is on prosecution to prove, but it does not mean that if it fails to discharge the said onus, case is bound to fail. A fate of case never hinges on the proof or otherwise of a motive alleged in the case, but it depends upon ocular account of facts A coupled with all attending circumstances including evidence of recovery and medical evidence.
15. In the instant case, prosecution case depends upon the statements of P.W.9 Nazir Muhammad complainant as well as P.W.10 Faiz Muhammad, who is an eye-witness of this incident. According to prosecution version appearing in F.I.R. Exh.P.F., the complainant alongwith deceased Mushtaq Khan beside Rafiullah Khan and Faiz Muhammad (P.W.10) were present at the hotel of Muhammad Ali at about 12-30 noon and were taking tea while sitting at a cot, when the appellant alongwith acquitted accused came there duly armed with .12 bore pistols and appellant fired with his pistol hitting the deceased Mushtaq Khan on the back of his shoulder. Much stress has been laid down on the proposition as to why only Nazir Muhammad (P.W.9), Faiz Muhammad (P.W.10) and Rafiullah P.W. (given up) were attracted on the spot and why no independent witness came forward to lodge the report. As per prosecution version, the complainant alongwith Faiz Muhammad and Rafiullah were there and the presence of P.W.9 Nazir Muhammad stands proved from the very fact that he lodged the F.I.R. Exh.P.F. Within 15 minutes of incident. This prompt F.I.R. Containing full particulars of the incident, number of injuries, weapon used and the part played by the appellant and Khizar Hayat (since acquitted), clearly proves that P.W.9 and P.W.10 were present on the spot.
The stand of defence counsel that P.W.9 resided about 250 Karams from the said hotel, so there was no justification of his presence at the hotel for tea, is devoid of any force, as people do sit at hotels for taking tea. Thus, this contention stands rebutted.
16. The next point urged is that prosecution evidence consists upon evidence of P.W.9 and P.W.10 who are related to each other and to the deceased as well. There is no doubt that both P.Ws.9 and 10 are related to the deceased, but testimony of a witness related to the deceased is not to be discarded merely on account of his relationship with the deceased, because he would not normally allow the real culprit to escape by impleading an innocent person, as held in Wahid Bakhsh and others v. The State 1997 SCM R 1424. Again in the instant case both the eye-witnesses are related to the deceased, but record does not show that they are inimically disposed toward the accused or had any reason for their false implication, as such their evidence does not require any independent corroboration. Reliance is placed on Wahid Bukhsh and others v. The State 1997 SCM R 1424 referred above. In the instant case complaint has been lodged within 15 minutes of the occurrence by the complainant who has also named other eye-witnesses which reflects that both of them were present at the time of occurrence and had witnessed the same. Eye-witnesses have unanimously impleaded the appellant for causing fatal shot on the deceased. The complainant and P.W.10 Faiz Muhammad are residents of places 250 Karams away from the place of incident, as such their presence on the spot stands proved under the circumstances. Reliance is placed on Muhammad Yar v. The State 1997 SCM R 401 in which case presence of witnesses residents of village situated at a distance of 3 miles has been adjudged natural.
17. Learned defence counsel has also laid great stress on the point that as per site plans Exh.P.B.
And Exh.P.B./1, other shops have been shown around the place of occurrence and even the presence of other witnesses seems plausible, but their non-examination casts doubt on the bona tide of prosecution story. Admittedly incident took place at a hotel and presence of other witnesses cannot be ruled out. However, failure of prosecution to cite or examine any witness from the vicinity of the place of occurrence does not have any adverse effect, as it is a matter of common knowledge that the people from the locality generally hesitate to come forwa-d as witnesses in such cases for fear of reprisals from the accused party. Reliance is placed on Muhammad Ahmad and another v. The State 1997 SCM R 89.
18. It is also asserted by the learned defence counsel that since the statements of P.Ws.9 and 10 have not been accepted by the trial Court in respect of accused Khizar Hayat (acquitted accused) so relying upon the maxim "falsus in uno falsus in omnibus" their statement be discarded in respect of appellant. This maxim has no universal application as often grain has to be shifted from the chaff. So, there is no force in this contention and reliance is placed on 1997 SCM R 89 (ibid).
19. Regarding Criminal Revision No,212 of 1991, it is submitted by the learned counsel, that he has been acquitted as he was found innocent by police. His contention is that opinion of police is not binding on the Courts, that Khizar Hayat respondent/acquitted accused stood named in the F.I.R., and shared common intention with the appellant, so the trial Court was not justified in passing order of acquittal. There is no doubt that opinion of Investigating Officer is not binding on the Courts, yet the respondent/acquitted accused has not been acquitted simply on that score. A perusal of evidence brought on record clearly shows that no overt act is attributed to him; he has simply been shown to be present with the appellant at the time of occurrence. The trial Court has passed order of his acquittal after recording entire evidence. The order to that extent is well- reasoned and does not call for any interference. There is no force in this criminal revision and the same is dismissed.
20. The upshot of above discussion is that lower Court has passed order of conviction against the appellant in accordance with law, as prosecution succeeded in bringing home guilt to the accused/appellant. There is no force in this appeal and the same is dismissed.