' Appellant Amir Ali has been convicted under section 302, P.P.C. By Mr. Fayyaz Hameed Qureshi, learned Sessions Judge Okara, and has been sentenced to life imprisonment plus a fine of Rs,40,000, or in default thereof, to further undergo R.I. For two years vide the impugned judgment dated 27th of November, 1991.
2. Facts of the case are fully detailed in the judgment of the trial Court. Incident resulting in the death of deceased Talib took place on 21-11-1989 at 9-00 a.m. Faazil complainant, who is real brother of deceased Talib, reported the matter at Police Station Chuchak, wherein, he alleged that his deceased brother Talib had lent a sum of Rs,100 to accused/appellant Amir Ali. Deceased Talib demanded this money for a number of times from the accused/appellant Amir Ali, who put off this demand on one pretext or the other. On the fateful day. i.e,, 21-11-1989, Faazil complainant alongwith P.Ws. Khushi Muhammad and Noor Ahmad and deceased Talib were present at the shop of Wali Muhammad, when appellant Amir Ali passed in front of the said shop, Talib deceased asked for the re-payment of loan and it led to an altercation between the deceased Talib and accused- appellant Amir Ali, but they were separated by complainant and other persons. Amir Ali accused- appellant threatened Talib deceased that he would teach him a befitting lesson for his insult, and left for his house. This incident took place in the morning at about sun rise. On the same day at about 9-00 a.m., deceased Talib was proceeding towards his house, when Amir Ali accused- appellant armed with a .12 bore gun suddenly emerged at the spot, raised a 'Lalkara' that he would not spare Talib deceased and fired at him with his gun. In order to save his head and face, Talib deceased put his right hand on his mouth. Fire shot hit the deceased at his right hand and chin. On receipt of this injury, deceased Talib fell on the ground and died at the spot. Occurrence was witnessed by Faazil complainant, Khushi Muhammad and Noor Ahmad P.Ws. They raised alarm, whereupon, the accused-appellant Amir Ali decamped taking his gun with him. Leaving the dead body of Talib deceased under the guard of Noor Ahmad and Khushi Muhammad P.Ws., Faazil complainant went to Police Station Chuchak and lodged the F.I.R. Exh.PC which was read over to him, and he thumb marked the same in token of its correctness.
3. Maratab Ali Shah, Inspector/S.H.O. After recording the statement of Faazil complainant (which is now treated as F.I.R. Exh.PC) left for the spot. He prepared the injury statement Exh.PM and the Inquest Report Exh.PB in respect of the deceased Talib, and despatched the dead body for autopsy.
He also inspected the spot, took blood-stained earth from the place of occurrence vide memo Exh.PD and made it into a sealed parcel. He then recorded the statements of the P.Ws. He also got prepared the site plan Exh.PL and its copy PL/1 through Abaid Ullah Khan Draftsman.
4. On 4-12-1989 said 'Thanedar' arrested the appellant Amir Ali who while in custody led the police and got recovered his gun P5 alongwith 5 live cartridges P6/1-5 from an iron box which was lying in his residential house, which was taken into possession vide memo Exh.PE and was made into a sealed parcel. After the completion of investigation, challan was put in against appellant Amir Ali.
5. Dr. Mahar Irshad Ali, Medical Officer, D.H.Q. Hospital Okara conducted the post-mortem examination on the dead body of the deceased Talib and noticed the following injuries:-
(1) A lacerated wound 1 x 1/2 c. m. Deep going with inverted margins on left side of neck 2 c.m.
Below the left ear;
(2) A lacerated wound 1 c.m. x 1/2 c.m. Deep going with inverted margin on left side of neck 4 c.m.
Below injury No,1;
(3) A lacerated wound 1 c.m. x 1/2 c.m. Deep going with inverted margin on front upper middle of neck;
(4) A lacerated wound 1 x 1/2 c.m. x deep going with inverted margins on left side of neck in between injuries Nos.2 and 3;
(5) A lacerated wound 8 x 7 c.m. Deep going on left mandible with fracture of mandible bone and left jaw;
(6) A lacerated wound 1 1/2 x 1/2 c.m. Deep going with everted margins on back of left side of neck;
(7) A lacerated wound 5 x 4 c.m. With blackened and inverted margin on front of right hand through and through 8 x 7 c.m. On back of right hand.
' In the opinion of the doctor, death had occurred due to shock and heamorrhage as a result of injuries 1 to 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by firearm. Time between injuries and death was almost immediate while the time between death and post-mortem was opined to be within about 32 hours.
6. Appellant Amir Ali denied the prosecution allegation and pleaded false implication. He also denied the recovery of gun P5 alongwith 5 live cartridges at his instance. He alleged that he had not borrowed even a penny from the deceased. The motive has been concocted with a view to strengthen the prosecution case. He vehemently contended that deceased was done to death during the dark hours of the night and it was a blind murder. None had witnessed the same.
However, he did not produce any defence evidence nor he opted to enter in the witness box as envisaged under section 340(2) Cr. P.0
7. From the evidence of P. W.1, Dr. Mahar Irshad Ali I am fully satisfied that in respect of the death of Talib deceased, an offence of wilful murder ('Qatl-i-Amd') has made out against some person or persons, and the most material point which falls for the determination of this Court is, whether the judgment of the Court below, whereby, the appellant has been found the real culprit and the actual murderer of deceased Talib who caused his death by giving him firearm injury with his .12 bore gun by holding that the occurrence has taken place in the manner as alleged by the prosecution witnesses, represents the true appraisal of evidence, or the learned trial Judge has erred in arriving at this conclusion.
8. That takes me to the question, whether the prosecution was able to prove its case against the appellant Amir Ali beyond any reasonable doubt, and the learned trial Judge was justified to record his conviction under section 302 P . P . C .
9. The evidence relied on by the prosecution mainly consisted of the ocular version of the occurrence given by Faazil (P.W.5) and Khushi Muhammad (P.W.6), the corroboration of these two witnesses is available by the evidence of motive, medical evidence and the recovery of weapon of offence 12 bore gun P5.
10. I now venture to discuss each piece of evidence in detail.
11. The motive for the commission of this murder which finds mention in the F.I.R. (Exh.PC) and proved at the trial by Faazil Complainant (P.W.5) appears to be quite genuine and true. He has asserted that appellant Amir Ali had borrowed Rs,100 from deceased Talib, and the appellant was reluctant to repay this loan despite repeated demands by the deceased. On the day of occurrence at sun rise time, when the deceased again demanded his money from the appellant, it led to an altercation and exchange of abuses between them. They were separated by Faazil complainant and others. Khushi Muhammad P.W.6. Has also supported this incident and evidence of Talib and Khushi Muhammad stands unrebutted on this point.
12. Learned counsel for the appellant has argued with great vehemence that the motive alleged by the prosecution is weak and inadequate which is rather farfetched. I do not see any force in this contention. I am fully satisfied from the evidence of the complainant Faazil that deceased had lent a sum of Rs,100 to the appellant and his refusal led to an altercation in the morning and ultimately of this unhappy episode at 9-00 a.m. On the day of occurrence i.e,, 21-11-1989. The animosity may not have been very bitter, but then it is too much to say that it cannot possibly form the motive for the occurrence. The variation in human nature being so vast, murders are known to have been actuated by much lesser motives. A similar view was expressed in PLD 1976 SC 44 and I quote the relevant portion: "Atrocious crimes at times are committed from very slight motive not for seeking revenge but also to gain small pecuniary advantage and to drive off difficulties for a time."
13. In any case, it is not a sine qua non in the success of the prosecution that the motive must be proved. So long as the other evidence remains convincing and is not open to reasonable doubt, the conviction may well be based on it. It was observed in the celebrated judgment reported as Abdul Rashid v. Umid Ali PLD 1975 SC 227 at 237 that "weakness of motive or its complete absence would be wholly immaterial when the prosecution case stands proved through the ocular account of unimpeachable character".
14. However, in the instant case, the prosecution has fully established the motive part of its story and it serves as a useful piece of corroboration.
15. Coming to the ocular evidence furnished by Faazil P.W.5 and Khushi Muhammad P.W.6, it will be seen that Faazil P.W.5 is the real brother of the deceased Talib and the author of F.I.R. Exh.PC. He reiterated what he had stated in the F.I.R. And his statement stands further fortified by the evidence of Khushi Muhammad P.W.6 on all material particulars. He deposed on oath that he was present at the shop of Wali Muhammad P.W. (since dead) alongwith Faazil complainant, his deceased brother Talib and Noor Muhammad P.W at about sun rise time about one year and nine months prior to his appearance in the witness box. In the meantime, appellant Amir Ali passed by that side and Talib deceased demanded the repayment of his loan from the appellant, who abused the deceased which led to exchange of abuses and grappling with them. Faazil and Khushi Muhammad P.Ws.
Separated them. Amir Ali appellant while leaving that place threatened the deceased. On the same day at about 9-00 a.m. When Talib deceased was proceeding towards his house and reached near the turn of the street, Amir Ali appellant emerged at the spot with a .12 bore gun in his hand; he challenged the deceased and fired at him. Deceased put his hand on his face and the fire hit the deceased on his hand and chin. He fell on the ground and succumbed to his injuries at the spot. Faazil P.W. Then left for the police station for lodging the report. Khushi Muhammad P.W.6 further deposed that he joined the police investigation of this case and in his presence, the Investigating officer seized the bloodstained earth from the place of occurrence and took the same into possession vide Memo Exh.PD and made it into a sealed parcel. Thereafter, he again joined the investigation of this case, and Amir Ali appellant while in custody led the police to the recovery of a .12 bore gun P5 from his house alongwith five live cartridges P6/1-5 which were taken into possession vide Memo Exh.PE. The said gun was made into a sealed parcel. Both the recovery memos were attested by Khushi Muhammad P.W.6.
16. Faazil and Khushi Muhammad P.Ws.5 and 6 respectively were subjected to a searching cross- examination, but there is nothing on the file which may tend to discredit their testimony.
17. I have gone through the evidence of these two witnesses, and I find myself in complete agreement with the view taken by the trial Court. Both the witnesses were allegedly present at the shop of Wali Muhammad which is at a distance of 5-6 'Karams' from the place of occurrence. Their presence at the shop of Wali Muhammad P.W. (since dead) stands fortified by the statement of Wali Muhammad made before the police. Although it is not a substantive piece of evidence, however, I have used it simply to ascertain the genuineness of the assertion made by aforesaid two eye-witnesses about their presence at the shop of Wali Muhammad (since dead). It was a broad day light occurrence, accused being the close relative of Faazil complainant and Talib deceased and a familiar face to Khushi Muhammad P.W., therefore, there was no doubt or dispute about the identity of the culprit. Faazil and Khushi Muhammad P.WS. Stood firm to the test of cross- examination. Shorn of a few discrepancies or contradictions which are not of vital nature, their evidence is by and large consistent and congruant, straightforward and piognant. A careful perusal of their evidence would show that it has a ring of truth from start to finish. Having no previous animous, hostility, and prejudice against the accused who is a close relative of the complainant (mother of the complainant and father of Amir Ali accused are the first cousins inter se), I see no rhyme or reason as to why they should trump up a false case against the accused. I, therefor, fully endorse the finding of the trial Court that these witnesses were reliable and truthful.
18. Learned counsel for the appellant has vehemently contended that these P.Ws. Being closely related to the deceased are interested and partisan witnesses and their evidence is not worthy of any credence without corroboration. I do not see any force in this contention, because it is now well settled that mere relationship is no ground to discard the evidence of a witness unless it is shown that he was actuated with a motive or malice to falsely implicate the accused, and there is nothing on the file which may tend to show that these two witnesses, namely, Faazil and Khushi Muhammad were actuated with some ulterior motive, enmity or against the appellant Amir Ali.
19. Learned counsel for the appellant also pointed out a few contradictions between the statements of these two witnesses, which are minor in nature and so insignificant that these deserve no comment. Even otherwise, it is well settled rule of law that some discrepancies are inevitably bound to occur in the statements of the eye-witnesses on account of lapse of memory owing to C intervening period of their appearance before the police and their entry in the witness box during the trial. In the absence of any material discrepancy, the rejection of their testimony on this score is wholly unwarranted. On this point, the Supreme Court of Pakistan held in a case reported as Abdul Rashid v. Umid Ali and 2 others PLD 1975 SC 227, the relevant portion reproduced hereunder, finds mention at page 239;
20. "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 parrot-like 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 this 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 aforesaid witnesses casting doubt on their veracity. To my mind, Faazil and Khushi Muhammad are witnesses of truth, and I place my implicit reliance on their testimony which is not tainted with any prejudice, enmity, hostility, motive or malice against the accused. The motive and evidence of recovery lends full support to the ocular account in this case.
20. Dr. Mahar Irshad Ali P.W.1 deposed that deceased suffered as many as injuries on his person. All the injuries were ante mortem and had been caused by fire arm. Time between injuries and death was almost immediate and the time between death and postmortem was about 32 hours. This is in complete conformity with the ocular account furnished by aforesaid eye-witnesses, namely, Faazil and Khushi Muhammad.
21. Learned counsel for the appellant tried to make a mountain of a mole by alleging and agitating that there was a conflict between the ocular and the medical evidence. The doctor has frankly conceded in his cross-examination that there was no injury on the chin of the deceased although both the eye-witnesses have categorically stated that single shot fired by appellant hit the deceased on his chin and right hand. Moreover, the doctor has unambiguously opined that death of deceased occurred at about 6-00 a.m. On 21-11-1989 because some semi-digested food was found in his stomach at the time of his post-mortem examination, and the deceased might have taken his last meal one hour before his death.
22. Having given my careful consideration to the aforesaid contention, I fully concur with the learned trial Judge that Dr. Mehar Irshad Ali P.W.1 has perjured on this point with a view to extend favour to the accused. Unfortunately, corruption has penetrated in this noble profession too, and I am constrained to reject the opinion of the doctor that the occurrence had taken place at 6-00 a.m. On two fold grounds, firstly, that there was no data/material available before the said doctor which could lead him to this conclusion. It was all hypothetically, according to the doctor deceased might have taken his last meal within one hour before his death which comes to 5 a.m. In the third week of November which is almost impossible. People with rural background take their breakfast during the winter after about 1 - 2 hour of the sun rise and breakfast at 5-00 a.m. i.e,, about two hours before the sunrise is not known to the village folk. Even otherwise, the opinion of the doctor is absolutely hypothetical which is not based on any material/data and carries no weight or value in the eye of law.
23. Coming to the next point regarding injury on the chin of the deceased, the doctor has unambiguously stated during the trial that there was no such injury. This is a self-contradiction, a perusal of post-mortem report and the diagram of injuries Exhs:PA and PA/1 would show that this injury has been specifically mentioned. To my great surprise, the doctor also opined about the number of shots. According to the ocular evidence, accused fired only one shot at the deceased which resulted in his death, but the doctor made a categorical statement that deceased was fired at twice and alleged that injuries on the person of the deceased were result of two fire shots. Again another favour shown to the accused by this doctor may be pointed out which is available in his cross examination, the doctor deposed that injury on the palm of the right hand of the deceased was caused from a distance of three feet and injuries 1, 2, 4, and 5 were caused from a distance of about 10 feet from the accused.
24. The learned trial Judge has observed that ultimately this doctor admitted the defence plea of the accused that the occurrence had taken place at about 6 a.m. On 21-11-1989 in order to falsify the ocular account and made the following observation: ' The mode of statement was purposely adopted by Dr. Irshad Ahmad because in examination in chief he could not realise from his own postmortem report and the diagram showing the location of injuries in Exhs.PA and PA/1; at the same time he was bent upon showing favour to the accused by admitting the suggestion put to him in cross-examination. The chaff has to be separated from the grain and that portion of the statement which is false or untrustworthy made to favour the accused, has to be discarded. I would, therefore, ignore these motivated admissions in favour of the accused. The truth of the matter is the same as deposed by Dr. Irshad Ahmad in examination in chief and the diagram of injuries prepared soon after the occurrence.
' I fully concur with the aforementioned observation of the learned trial Judge and hold that the aforesaid doctor has perjured on the aforesaid points with a view to extend favour to the accused.
After all he was not an eye-witness of the occurrence nor an expert of fire-arm. How could he say that two shots were fired at the deceased instead of one. Even otherwise he was not competent to give distance between the accused and the deceased when he fired at the victim (Talib). However it is now well settled that in case where there is a conflict between the ocular evidence and the medical evidence, the ocular evidence would prevail. See PLD 1976 SC 54 where it has been observed at page 56: ' "It is well established principle, that expert evidence may it be medical or that of a Ballistic Expert is entirely in the nature of confirmatory or explanatory of direct or other circumstancetial evidence.
But if there is direct evidence as in the instant case, which is definite, forthright and the same time credit worthy, confirmatory evidence is not of much significance. It cannot at any rate outweigh the direct evidence unless it is for any reason deficient in quality."
' This case in my view is not of that kind, as pointed above, the ocular evidence available in this case is straight-forward, forthright and unimpeachable. Hence, the medical evidence cannot outweigh it. Even otherwise, doctors give time of death and distance between the accused and deceased by guess which cannot be taken as a gospel truth.
25. The recovery of gun P5 although satisfies all the legal requirements because it has been proved through the evidence of Khushi Muhammad P.W.6 who is a resident of the same locality and Maratab Ali Shah Inspector S.H.O.
' P.W.10 and the g in was found in working order vide Exh.PQ. However, since no crime empty was recovered from the spot at the time of spot inspection by said 'Thanedar', hence, it has been argued that recovery of gun P5 at the instance of accused does not carry much corroborative value. Be that as it may, the fact remains that it fits in the ocular version of occurrence given by aforesaid eye-witnesses, hence its evidentiary value stands not diminished at all. Keeping in view the entire prosecution evidence, discussed above, I hold that prosecution has fully established the guilt of the appellant Amir Ali through ocular evidence, motive and the medical evidence for the commission of murder of Talib deceased. I am, therefore, fully convinced that the occurrence has taken place in the manner as alleged by the prosecution, and the learned trial Judge has rightly believed the prosecution evidence.
26. The defence of the appellant is that of false implication and substitution on account of enmity.
There is nothing on the file which would tend to indicate any previous enmity between the deceased and the appellant. As regards the plea of substitution, it is now well-settled that one who takes the plea of substitution must lay the foundation for it. The Superior Courts of this country have held in a number of judgments that it is absolutely inconceivable and unthinkable that the relatives of the deceased would allow the real culprit to go scotfree and substitute him with an innocent man. Their blood would boil against the real murderer, and many a times, they have taken the law in their own hands by butchering the killer of their father, brother, son or any other kith and kin and they preferred to go to the gallows by avenging their blood fueds. In several cases, we have experienced that the complainant party attacked the accused persons who were even in police custody without realising the consequences of their acts and went to the extent of murdering the escorting police constables, if the occasion so demanded alongwith their enemies. Substitution is a rare phenomenon and no sane or sensible person would believe that Faazil complainant who is the real brother of the deceased would screen out the murderer of his brother when the occurrence had taken place in a broad-day light and there was no question of any mistake of the identity of the accused and only a single accused is nominated as the murderer of the deceased. The defence plea, therefore, has no foundation for it and I reject the same summarily.
The upshot of the above discussion is that I am fully convinced that prosecution has brought home the guilt to the appellant Amir Ali, and has proved its case against him beyond any shadow of doubt. The judgment of the I trial Court is unexceptionable. Resultantly, I do not find any merit in this appeal which is accordingly dismissed.
' Conviction and sentences of the appellant are maintained.