MIAN BURHANUDDIN KHAN, J. Azeem Khan son of Ibrahim Khan, aged 75 years, of Adamzai village, tehsil Nowahera, stands condemned to death under section 302, P. P. C. For causing the murder of his to-villager. Wakeel Khan, by the learned Additional Sessions Judge, Nowshera, ride -his judgment dated 21-3-78.
2. The convict has come up in appeal hearing No. 66 of 1978 sad there is also a Murder Reference No. 27 of 1971 for the confirmation of death sentence, passed on the convict, Azeem Khan. This judgment will dispose of both the matters.
3. The report in the case was lodged by Ali Akbar, P. W. 1, a step brother of Wakeel Khan, deceased, on 12th April, 1976 at about 1530 hours in Police Station, Akora Khattak, lying at a distance of one mile and a half from the scene of crime. According to this report, on the day of occurrence at about 1430 hours Ali Akbar, P. W. 1, accompanied the decoased in order to enquire after the health of the mother of their relation, namely. Jehanzeb. When they reached near the grocery shop of one Zar Wall, the deceased was ahead of the complainant. Near the shop of Zar Wali, Hasham Ali P. W. 2 and Ihsanullah P. W.
3. Were standing, who met him. In the meantime, Azeem Khan appellant appeared armed with a 'topak' from the side of his house and on reachiAg near the deceased called him not to move and simultaneously fired a shot, which hit the deceased on his head. Soon after the firing, Mst. Misri Jan, mother of the deceased, arrived there and saw the appellant running away with a 'topak' towards the field. The deceased died on the spot and the dead body was left there and P. W. Ali Akbar proceeded to the police station where he notified the police vide First Information Report, Exh. P. A.
The motive, stated in this report, is that about two days prior to trio occurrence in the 'arhat' of one Multan, Azeem Khan appellant had asked Mst. Misri Jan, mother of the deceased, to bring grass for him on payment but she refused to do so and this Azeem Khan, appellant, insulted her. On learning about this, Wakeel Khan, deceased, on the evening following the morning of this incident, went to the street of the house of the appellant and abused him.
The report was recorded by Shamroz Khan, Sub-Inspector, P. W. 9, who after recording the same, read it out to Ali Akbar, who after admitting the same to be correct, thumb impressed it. Thereafter, Shamroz Khan P. W. 2, proceeded to the spot where he prepared the injury-sheet, Exh. P. E/1 and inquest-report, Exh. P. F. Of Wakeel Khan, deceased, sent the dead body to the mortuary. He recovered a pellet, Exh. P. 2, and blood-stained earth from the spot, Exh. P. 1, and took these into possession vide memo. Exh. P. D. And Exh. P. E., respectively. Later on, he received another pellet, Exh.
P. 4, extracted from the body of the deceased by the doctor, which he took into possession vide memo Exh. P. D/1. He then prapared the site plan, Exh. P. C, correctly with all the details given in the footnotes.
4. Dr Iqbal Lodhi, P. W. 10 performed post-mortem examination on the dead body of Wakeel Khan son of Hissam Khan, aged 20/21 years of Adamzai on 12-4-1976 at 5-45 p. m. And found the following injuries on his person, on external examination:
(1) A group of six fire-arm entry wounds lying close to each other on occipital region of the skull size ----- x -----.
(2) Firearm exit wound one inch left and lateral to the outer canthus of the left eye, size ----- x ---- -.
(3) Firearm exit wound on front of route of nose, ----- x -----.
(4) Firearm exit wound on tight eye just below the middle of the right eye brow, ----- x -----.
(5) An exit wound just behind the left ear, size ----- x -----.
(6) A firearm exit wound just on medial end of right eye brow, size ----- x -----. Injuries Nos. 2 to 6 are the exits of injury No. 1.
On internal examination the doctor found that the scalp was injured, skull bone, occipital, both parietal, temporal and frontal bones of skull were fractured. Brain matter was also found damaged.
There was entracranial bleeding. One pellet was recovered from the skull, cavity. Stomach was healthy and full .Of semi digested food.
5. Ali Akbar, P. W. 1, gave ocular account of the occurrence, at the trial. According to his statement, the deceased Wakeel Khan was his step-brother and that on the day of occurrence at about 2-15 p. m. The deceased had come to his house in order to ask him to accompany him to the house of Jehanzeb, where Jehanzeb's mother was lying ill. Both left together and on reaching the spot, Ihsanullah and Hasham Ali, P. Ws, were found standing near the shop of one Zarwali. After greeting them, he stopped there. When in the meantime, Azeem Khan appellant came from the western side armed with a 'Topak'. The deceased was then going ahead of the witness and after throwing a challenge to the deceased, the appellant fired at him, when the latter had turned around to run for safety. The deceased, according to witness, 'was hit on his head and fell: dead to the spot. Upon this, he, Hasham Ali and Ihsanullah P. Ws., went towards the place where the deceased was lying and found him dead. Thereafter, he left for the Police Station where he lodged to report, Exh. P. A.
According to this witness the motive is the same which he-had stated earlier in the report.
Hasham Ali, P. W. 2, narrated at the trial that shop of Zarwali being nearer to his house, he was standing near the shop when Ihsanullah, P. W. 3, came there and also stood there in order to make some purchases. In the meantime, Ali Akbar P. W. 1, came from the East, greeted them and engaged in. Talking when in the meantime, the appellant appeared from the West, armed with a 'topak'. Ali Akbar, P. W. 1, left behind by Wakeel Khan, deceased, was still standing with them, when the appellant, after abusing the deceased, fired at him from his back and hit him on the head and there--after decamped towards the western side. On going towards the deceased, they found him dead. Ali Akbar P. W. Then left for the P. S. In order to report the matter.
Ihsanullah, P. W. 3, is the third witness in the case giving the occular account. His statement is to the same effect as that of Hasham Ali, P. W. 2.
Rest of the witnesses are formal and their evidence need not be reproduced here.
6. After close of the prosecution case, the appellant was examined who denied the commission of the offence. Regarding the witnesses, who have denounced him as the culprit, he stated that they are closely related to the deceased, and as one of his (appellant's) sons, Mir Nawaz, was married to the daughter of Misal Khan two months prior to the occurrence, whose hand was sought by Ali Akbar, complainant, for his brother, Wakeel Khan deceased, but Misal Khan refused to give his daughter in marriage to the deceased as the latter was not enjoying good reputation, Ali Akbar P.
W. Had taken exception to this and warned him (appellant) that he should not get his son married to the daughter of Misal Khan. However, he produced no defence.
7. The learned counsel appearing for the appellant seriously challenged the testimony of the three eye-witnesses on the ground of relationship and pointed out certain discrepancies in their statements, i. e. Regarding the places where they were standing at the time of the alleged crime, and conflict between their statements and that of the doctor. He also questioned the flimsy nature of the motive and lack of proof, therefore, urged that no adverse conclusion could be drawn against the appellant regarding his complicity or motivation for the commission of the crime.
Regarding his first contention, he has referred to the statements of the three eye-witnesses, namely, Ali Akbar P. W. 1, Hasham Ali P. W. 2, and Ihsanullah P. W.
3. About Ali Akbar the learned counsel's contention was that being a brother of the deceased had sought to settle the account with the appellant, who had succeeded in getting the daughter of Misal Khan for his son. The learned counsel referred to the F. I. R. Exh. P. A. Wherein Ali Akbar, P. W. 1, had stated that at the time of occurrence the deceased was going ahead of him when the appellant appeared and allegedly fired at the deceased who was proceeding in the opposite direction, and, therefore the entry wounds should have been in front, whereas those were on the back, t. e. Occipital region of the skull. Had this witness been present, there would have been no vital discrepancy in his statement in direct conflict with the medical evidence. In this sequence he also referred to the cross-- examination of this witness wherein he had admitted that Hasham Ali and Ihsanullah P. Ws. Were standing in front of the shop of Zarwali when he reached there, greeted them and stood with them to have a talk, when the deceased was proceeding ahead. As such, in that way, the witness could not have seen the appellant firing at the deceased as the deceased was proceeding from East to West and was fired at when he was at point No. 1, by a person who was, according to the prosecution case, coming from western side. The door of the shop of Zarwali opens in the street, which lies to the North of the spot; that subsequent shifting of the places by the two witnesses, Hasham Ali and Ihsanullah to points 4 and 5 was the ingenuity of the Investigating Officer in order to make them eye-witnesses of the crime. The learned counsel referred to Niaz v. The State (P L D1960 SC 387) wherein their Lordships held whenever interested persons claiming to be eye- witnesses of an occurrence charged 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 be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. The effort of the learned counsel by citing this case was that the three eye- witnesses have admitted that the deceased was one way or the other related to them. Akbar, P. W.
1, has accepted the fad that the deceased was his step-brother, while Ihsanullah P: W. 3, has admitted that the daughter of Ali Akbar is married to his brother, Jabbar. He also admitted that many villagers had collected on the spot after the occurrence. Hasham Ali's statement was challenged on the ground that his daughter, Mst. Siraja, was abducted by Ribat, maternal uncle of the appellant, which fact has been admitted in cross-examination by Ali Akbar, P. W.
1. The learned counsel also referred to Rahim Bakhsh v. Muhammad Iqbal and others (1976 SCMR 528) wherein it was held that murder incident tailing place in broad daylight in a populated part of a village, the prosecu--tion version only supported by witnesses related to the deceased who were attracted to the spot and these witnesses admitted that a large number of other persons had also collected on the spot and to explain this jarring feature the suggestion that in serious incidents like that disinterested witnesses keep away rather than to embroil themselves and incur the animosity of one of the parties, and while this unfortunate tendency cannot altogether be discounted it cannot be accepted on all cases as valid explanation for the prosecution failure to produce the best evidence. It was further observed in this reported case that their Lordships were not impressed by the argument either that because of the extreme improbability of sparing the actual culprit and falsely substituting the two respondents, in that case, would necessarily bring home the offence to the respondents, and that if that argument were to be accepted then it would amount to placing the burden on the respondents to prove their innocence and relieve the prosecution of its responsibility to prove the case against the respondents, beyond any reasonable doubt.
8. On going through the reported case and the observations of their Lordships, as mentioned above, and having given our careful consideration to the above argument of the learned counsel for the appellant, we are not impressed with the argument for the reason that in the instant case there is no delay in making the report, wherein the appellant, who is of a sufficiently advanced age, was charged directly and in the same report it has been stated that before the fatal shot was fired the deceased was challenged by the appellant not to move, and, it is but natural that the deceased apprehending danger to his life must have turned round to run for his life. This fact finds corrobration from the statements of the two other witnesses, namely, Hasham Ali and Ihsanullah P.
Ws. The first named person, Hasham Ali, stated in the examination-in-chief that on seeing the deceased, Azeem Khan abused him and with this he fired at the deceased on the back of his head, who fell down. Ihsanullah, P. W. 3, in cross--examination stated "when the accused asked the deceased to stop, the deceased turned his face towards us and the accused fired at him at the back and hit him in the back of his head". This part of the statement has not been challenged by confronting the witness with his earlier state--ment to the police, obviously there this fact must have been mentioned. In the reported case their Lordships pointed out that there were material inconsistencies between the statements of the eye-witnesses and the medical evidence and it was also found that one of the respondents was kept by the police in custody for a night, but attempt was made to conceal this fact and when duly confronted the I. O. Admitted that there was a clerical error regarding the custody of the respondents.
9. We would how like to consider the next contention regarding variation in the statements regarding the places where the eye-witnesses were present at the time of occurrence and later on points shown in the site plan. But this is not a very material point because the site plan prepared by the Investigating Officer is not a substantive piece of evidence which could be used to contradict or discredit the unchallenged evidence of prosecution eye-witnesses, as held in Taj Muhammad Yusuf and 2 others (PLD 1976 SC 234). The relevant portion of the question before us is as follows:- "The site plan itself, however, does not mention that it was from these spots they bad seen the incident. The Patwari P. W. 6 Ali Muhammad merely relied on his memory to make the aforesaid statement in cross--examination. It is true that the witnesses said that they had showed to the Patwari the spot wherefrom they saw the occurrence, but they were not questioned with reference to the site plan itself although each one of them had categorically made the unchallenged statement that he had seen the occurrence from only one canal off the spot. Again, it is true that the witnesses stated in cross-examination about having seen all the 25/26 injuries having been given by the respondents to the deceased. The learned Sessions Judge bad rightly observed that it was not expected of an eye-witness to give details of each and every injury particularly when the number of the injuries was so large. The learned Sessions Judge having found the witnesses to be independent and disinterested who had no reason whatsoever to falsely implicate any one of the respondents rightly relied on their evidence as a whole, and the learned Judges of the High Court omitted to give due weight to such opinion of the learned Sessions Judge. In disbelieving the three eye-witnesses the learned Judges relied more on speculations than on the evidence."
It was further observed in the reported case "learned Judges were mainly influenced by the medical evidence and the site plan to throw en bloc on the evidence of the three eye-witnesses . . . . . . . It was hardly realised that the site plan itself is not a substantive piece of evidence which could be used to contradict or discredit the unchallenged evidence of the three eye--witnesses".
10. Coming to the case we are also of -the firm opinion that the points shown where the witnesses were present at the time of the occurrence cannot be considered as in conflict with their testimony as each of these witnesses has stated as follows: Ali Akbar P. W. 1, "while going there I saw P. Ws. Ihsanullah and Hasham Ali standing near the shop of Zarwali. I greeted them and I stopped with them."
Hasham Ali, P. W. 2, "we were standing to- the west of shop. The deceased and P. W. Ali Akbar came from the East. Ali Akbar greeted us came to us and started talking with us."
Ihsanullah; P: W. 3, also made a, statement to the same effect saying, "P. W. Hasham Ali was already present near the said shop. I also stood in front of the said shop which was closed".
11. We may also refer with advantage to the case Siraj Din v. Kala and another (PLD 1964 SC 26) wherein their Lordships of the Supreme Court made the following observation regarding the question of substitution of the real culprit: "Taking the last point urged by Mr. Saleem first, it is noteworthy that the crime was committed in an open bazar at evening time and must have therefore been witnessed. Even if Siraj Din was not himself an eye-witness, it would be extremely probable that be should have come to know who the actual culprit or culprits were. It would then be strange if he substituted the actual culprits by Kala respondent without good ground. No offence had been given by Kala to the complainant's family.
On the contrary, the motive suggested was that Kala harboured a grudge against the deceased's family, one of whose members had earlier killed his own brother Maja. In these circumstances it is not intelligible why the real assailant or assailants should have been allowed to go scot-free and Kala implicated falsely instead. Such substitution would, in my opinion, be a rare phenomenon, specially when only a single culprit is charged with the crime."
In the same reported case it was further observed by their Lordships that false implication of an accused person in a charge of murder which may lead to a sentence of death for persons who bear no enmity whatsoever to the appellant is a rare occurrence, when particularly, their Lordships further observed, that the witnesses were not professional witnesses and when there was no suggestion at all as to why they should make a false statement. In another case Roshan and 4 others v. The State (PLD 1977 SC 557) their Lordships of the Supreme Court held that there is 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 the interested witness. And 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 a 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.
Their Lordships further observed, 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. Reference was made to Shihab Din v. The State (PLD 1964 SC 177).
12. The learned counsel adopted the adequacy of the motive and also urged that the mother of the deceased Misri Jan, and Multan, in whose 'arhat' she was insulted by the appellant, have not been produced, though they were available at the trial. As such, there should be a conclusion that an act without a motive would be an effect without a cause, and that the appellant is charged with having committed the offence, the fact that he had no motive to commit it is a circumstance in his favour, as it strengthens the presumption of his innocence. But we would hardly subscribe to this view as to the adequacy of the motive, the classical observations of Lord Chief Justice Campbell in his address to the Jury in Reg v. Palmer's case may well be quoted, with respect to the alleged motive it is of great importance to see whether there was a motive for committing such a crime or whether there was not, or whether there is an improbability of its having been committed so strong as not to be overpowered by the positive evidence; but if there be any motive which can be assigned I am bound to tell you that the adequacy of motive is of little importance. We know from the experience of the Criminal Courts that atrocious crimes of this sort have been committed from very slight motives, not merely from impulse or revenge but to gain a small pecuniary advantage and to drive off for a time pressing difficulties. Therefore, we are of the view that when there is other evidence of the guilt of an accused person, the existence of a motive is a circumstance corroborative of the case against him. But motive is a fact which is within the personal knowledge of the person doing the act and which no human being but the party himself can divine. Thus failure to discover the motive for an offence does not signify its non-existence; and failure to produce' evidence of motive though it may be adduced with weakness of the whole body of proof, is not fatal as, in law, proof of motive is no more necessary, than the proof of any other relevant fact.
13. On the view of the matter that we take, we are of the view than the appellant is guilty of the murder and has been rightly convicted and sentenced. This appeal, therefore, fails and is hereby dismissed. Death sentence passed on the appellant is confirmed and the murder reference is answered in the affirmative.