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Criminal Appeal No. 31.9 of 1979, decided on 7th April, 1982.
Witness neither inimical towards accused nor having any motive to implicate accused falsely‑Mere fact that witness related to deceased, held, not sufficient to discard his testimony.
Sohni v. Bahaduri and S others P L D 1965 S C 111 and Shamsher and another v. The State etc. 1973 S C M R 69 ref.
Witness giving simple and consistent account of incident taking place in his own house as such deemed to be natural‑Witness bearing . stamp of injuries on his person, his presence at time of incident cannot be doubted‑-‑Incident taking place in broad daylight, identity of assailants not difficult‑F. I. R. lodged without any delay charging accused directly‑No blood feud or animosity existing between parties‑Question of false implication or substitution of innocent person for real culprit, held, does not arise.
Said Ahmad v. Zammured Hussain and 4 others 1981 S C M R 795ref.
‑‑ Creditable and impeachable witness deposing to things observed with his own eyes‑Such direct evidence, held, cannot be discarded merely on opinion of medical evidence. ‑[Evidence].
Sardar Baig v. The State 1979 P Cr. L 1690 ; Monir's Principles and Digest of the Law of Evidence, 1974 Edn., p. 612.and Yaqoob Shah v. The State P L D 1976 S C 53 ref.
S. 302‑Site plan‑Witnesses on whose pointation site plan prepared not produced‑Site plan, held, cannot be excluded from consideration altogether.
Taj Muhammad v. Muhammad Yousaf and 2 others P L D 1976 S C 234 ref.
‑‑S. 302‑Alibi, plea of‑Prosecution evidence to, show accused's presence and participation in alleged crime and that by accused to prove his presence elsewhere doubtful, held, both aspects should be considered together.
Aminullah v. The State P L D 1976 S C 629 ref.
S. 34‑Common intention‑Contention that appellant having not fired at deceased but at prosecution witnesses as such provisions of S. 34 not applicable, held, had no force‑Both accused entered house of deceased armed with Topaks ostensibly to use them as pre-planned ---Provision of section 34 attracted in circumstances of case‑[Common intention].
Rasool eakhsh v. The State P L D 1970 S C 316 ref.
A. IG Brohi assisted by M. Zahoorul Haq for Appellant.
S. Ibni Ali, Addl. A: G. for the State.
Date of hearing : 22nd February, 1982.
.‑Muhammad Zaman faced trial under section 302/34, P. P. C. for, in furtherance of common intention with his son Muhammad Younas, committing the murder of Fazli Ghaffar and under section 307/34, P. P. C. for attempting at the lives of Fazli Nabi and Fazii Ghani on 5.8‑1977 at about 10‑45 a. m. in the house of the victims situate in village Pir Payee. He was convicted under section 302/34, P. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 3,000 beside an equal amount as compensation to the heirs of the deceased. He was convicted sunder section 307/34, P. P. C. on two counts and sentenced to undergo years R. I. and to pay a fine of Rs. 1,000 and an equal amount as compensation to both the injured persons on each count. The convict has come appeal against the conviction and sentence passed by Mr. Khan Akbar Khan, Additional Sessions Judge, Nowshera per his order dated 12‑11‑1979 whereas Fazli Nabi has preferred Criminal Revision No. 23 of 1980 for enhancement of sentence. We propose to dispose of the appeal and the revision per this order.
2. The facts of the prosecution case briefly are that the deceased Fazli Ghaffar, his sons Fazli Nabi (P. W. 6) and Fazli Ghani (P. W. 7) were present in their house. Muhammad Israil, the wife and daughter of Fazli Ghafar were also in the house when at about 10.45 a. m. the appellant and his son Muhammad Younas entered the house with 'topaks' and opened fire. Fazli Ghafar who was critically injured died at the spot whereas Fazli Nabi and Fazli Ghani sustained grievous injuries. Both the injured were removed to the hospital and it was Fazli Nabi who lodged the report with S. H. O. Sarbiland Khan (P. W. 9). The latter sent the 'Murasila' to the police station for registration of the case, prepared the injury sheets and left for the spot where he found the dead body of Fazli Ghafar. His inquest report was prepared and the dead body was sent to the mortuary under the escort of F. C. Wazir Shah. The S. H. O. prepared the site plan and collected blood stained earth from the spot.
3. Dr. Iftikhar Ali Khilji (P. W. 8) performed the post‑mortem examina tion on the dead body of Fazli Ghaffar the same day at 2 p. m. and found the following injuries on it :‑
(1) Fire‑arm entry wound left side of neck " x ".
(2) Fire‑arm exit wound right side of neck " x ".
(3) Fire‑arm exit and entry wound on the right side of face at a distance of two inches from each other.
(3‑A) A fire‑arm entry middle of left clavical " x ".
(4) Fire‑arm exit back upper part left side x ".
(5) Fire‑arm exit and entry wounds across the right knee.
(6) A laceration on left shoulder.
On internal examination the thoracic walls, pleurae, left lung, blood vessels, muscles of the neck, face and chest were found injured. Mandible was fractured. The stomach was healthy and contained semi‑digested food. The death, according to the doctor, was due to injuries to the vital organs mentioned above. The time between injuries and death was within half an hour and between death and post‑mortem examination within 6 hours.
4. The doctor examined Fazli Ghani the same day at 11‑30 a.m., and found the following injuries on him :‑
(1) Four fire‑arm entries and exits in front and behind the right elbow joint, fracturing the joint.
(2) Two fire‑arm entries and exits in front and back of left shoulder.
(3) Two fire‑arm entries and exit wounds in front and back of left leg.
Injury No. I was grievous and the other injuries were simple and had been caused within 3 hours.
5. Fasli Nabi who was examined the same day had following injuries on him :‑
(1) Five fire‑arm entry wounds on the right side middle of chest each about " x " in an area of 4" x 4".
(2) Five fire‑arm exit wounds at the right side back of chest each " x ". Right lung injured.
The injuries had been caused by Are‑arm within 3 hours and were dangerous to life,
6. Muhammad Zaman and Muhammad Younas made themselves scare and despite warrants under section 204, Cr. P. C. and proclamations order under section 87, Cr. P. C. they could not be apprehended nor appeared before the police for quite some time. It was on 22‑10‑1977 that Muhammad Zaman was refused pre‑arrest bail and he was taken into custody whereas Muhammad Younas is still a fugitive from law.
7. The motive attributed for the crime was that about one and half year back Mst. Anjuman, daughter of the deceased, was married to Muhammad Younas but 6 months after the marriage their relations became strained and she deserted her husband. She had been with her parents since then.
8. The appellant denied the allegations of the prosecution and pleaded not guilty to the charge. He set up the plea of alibi and produced Noorul Akbar, Abdul Latif and Lajbar in defence.
9. The prosecution case mainly rests on the testimony of Fazal Nabi (P. W. 6) and Fazal Ghani (P. W. 7) for an eye‑witness account of the incident. They are brothers and being sons of the deceased Fazli Ghaffar are, no doubt, closely related to the latter but there is nothing on the record to indicate that they have been inimical terms with the appellant. Their sister Mst. Anjuman was married to Muhammad Younas, the absconder about one and a half years back but they could not pull on happily and she had been residing with her parents since about one year. The relations between the parties thus became strained but there was no blood feud between them nor there was animosity to the extent that they were after the life of one another. Now it is well‑settled that mere relationship with a victim would not render the witnesses as interested. It is observed in Sohni v. Bahadurl and others (P L D 1965 S C 111) that the proposition that the testimony of an interested witness should be corroborated by independent evidence is not of universal application and that if his testimony is found reliable the Court may accept it even without any corroboration but as a matter of prudence the Courts insist on corroboration when he is inimically disposed towards the accused. We are of the view that both the witnesses in the instant case were not inimically disposed towards the appellant and were not interested, i.e., had no motive to implicate the appellant falsely. The mere fact that a witness for the prosecution is related to the deceased would not be sufficient to discord his testimony if he has no motive to implicate an accused falsely in a crime. We may for this view of the matter refer to the dictum laid down in Shamsher and another v. The State etc. (1973 S C M R 69) and would now proceed to scrutinize the testimony of both these witnesses.
10. Fazal Nabi (P. W. 6) who is the maker of the F. I. R. deposed that on the day of incident he, his father Fazli Ghaffar, brother Fazal Ghani, mother Mst. Bibi Hawa and maternal‑uncle Muhammad Israil were in their house when at about 10.45 a. m. Muhammad Zaman and Muhammad Younas appeared with 'Topaks' and opened fire. Muhammad Younas fired at Fazli Ghaffar whereas Muhammad Zaman fired at him and his brother. The assailants decamped and the injured were carried to the hospital by the people who were attracted to the spot. It was in the hospital that he lodged the report. Fazal Ghani (P. W. 7) supported him and stated that he, Fazali Nabi, Fazli Ghaffar Mst. Bibi Hawa and Muhammad Israil were in the house when at about 10‑45 a. m. Muhammad Younas and Muhammad Zaman appeared with their Topaks'. Muhammad Younas fired at Fazli Ghaffar whereas Muhammad Zaman fired at him arid his brother. They were immured and removed to the hospital by the people of the locality.
11. Both the witnesses have given a simple and consistent account of the incident which took place in their own house and can be deemed as natural witnesses. Both of there bear the stamp of injuries on their persons and, as such, their presence at the time of incident cannot be doubted. The incident took place in the broad daylight and the identity of the assailant was not difficult. The F. I. R. was lodged within one hour in the hospital about 6/7 miles away without any delay and the appellant alongwith his son was directly charged in it. Them; being no blood feud or animosity between the parties no question of false implication or substitution of an innocent person for the real culprit arises. The contention of the learned counsel for the appellant that both the witnesses being closely related to the victim are not to be relied upon would not, in view of our observation made above, prevail. He further contended that the mere fact that the witnesses have received injuries would not by itself be indicative of their having told the truth and in this context relied on Said Ahmad v. Zarnmured Hussain and 4 others (1981 S C M R 795) wherein it is inter Z observed that "It is correct that the two eye‑witnesses are injured and the injuries on their persons do indicate that they were not self‑suffered. But that by itself would not show that they had, in view of the aforesaid circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye‑witnesses." These remarks are based on the particular circumstances of the case and there is no absolute rule that an injured witness is not to be relied upon at all. Each case depends on its own facts and circumstances and the credibility of the injured witness is to be determined in the light thereof. In the instant case there is nothing on the record to suggest that both the witnesses have not spoken the truth and have deliberately suppressed certain facts with an ulterior motive.
12. The learned counsel for the appellant strenuously contended that the testimony of these witnesses was not in conformity with the medical evidence and, as such, cannot be relied upon with confidence. He referred us to Sardar Baig v. The State (1979 P Cr. L J 690) wherein it was remarked that whenever there is a contradiction between the medical evidence and ocular evidence on material points the medical evidence should be preferred. Monir in his Principles and Digest of the Law of Evidence (1974 Edition) at page 612 made the following remarks :‑
The evidence of a medical man or other skilled witness, however eminent, as to what he thinks may or may not have taken place under a parti cular combination of circumstances however confidently he may speak, is ordinarily a matter of mere opinion and/or may stand on precisely the same footing as that of any other witness and may or may not be accepted by Court. Human judgment is fallible, human knowledge is limited and imperfect. New and previously unobserved phenomena which, till they have been recorded, are supposed to be impossible are constantly being noticed. The medical evidence does not itself prove the prosecution case. Its value is only corroborative.
In Yaqoob Shah v. The State (P L D1976 SC 53) it was remarked that "it is well‑estab lished 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 circumstantial evidence. But if there is direct evi dence as in the instant case which is definite, forthright and at the same time creditworthy, 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." It follows that it would not be appropriated in all cases to discard the direct evidence of creditable and unimpeachable witnesses deposing to things observed with their own eyes merely on the opinion of a medical witness. Their testimony, according to the learned counsel for the appellant, is in conflict with the medical evi dence inasmuch as they are unanimous in their assertion that the absconder Muhammad Younas had fired one shot at the deceased whereas the doctor opined that the injuries on the dead body of Fazli Ghaffar were the result of more than one shot. The witnesses disclosed that the deceased was sitting on a cot when he was fired at. The seat of the injuries sustained by him indicates that their assertion cannot be discarded altogether. They were not ques tioned with regard to the posture of the deceased at the time he was sitting on the cot and fired at and it cannot, by any stretch of imagination, be said that more than one shot was fired at him. Moreover, this fatal shot is attributed to the absconder Muhammad Younas and it is futile to determine at this stage in his absence whether he had fired one or more than one shot at the deceased. The learned counsel for the appellant urged that the incident is alleged to have taken place at 10‑05 a. m. and the doctor who examined Fazali Ghani at I1‑30 a. m. opined that the injuries were caused within 3 hours whereas his opinion about the death of Fazli Ghaffar was to have taken place within 6 hours. It may be pointed out that the autopsy was conducted at 2.00 p. m. and the duration of injuries was described as within 6 hours while the duration of injuries of Fazali Ghani was described as within 3 hours of his examination made at 11‑30 a. m. The word within' is significant and would in no way give rise to any doubt with regard to the time of incident given by these witnesses.
13. The discrepancy in the prosecution evidence with regard to the place where Fazal Nabi lodged the F. I. R. was highlighted by the learned counsel for the appellant. Fazal Nabi is the maker of the F. I. R. and he stated that he lodged it in the hospital. The F. I. R. was recorded by S. H. O. Sarbiland Khan (P. W. 9) and he claimed to have recorded the same in the hospital where he prepared injury sheets of the injured witnesses. Fazali Ghani, however, stated that the report of Fazali Nabi and his police statement were recorded in the police station. Since the maker of F. I. R. and its scribe are unanimous that it was recorded in the hospital the disclosure made by Fazali Ghani has little importance. He has sustained serious injuries and was referred to Lady Reading Hospital, Peshawar by the doctor. It is possible that he was in pains and could not recall distinctly as to where the report was recorded. The discrepancy is obviously not a material one.
14. The other grievance of the learned counsel for the appellant was that both the injured witnesses were not present at the time of preparation of the site plan and that it was the duty of the prosecution to have produced the other witnesses on whose pointation the site Flan was prepared. S. H. O. Sarbiland Khan revealed that the site plan was prepared by him at the instance of P. Ws. Muhammad Israil and Mst. Bibi Hawa. It was held in Tai Muhammad v. Muhammad Yousaf and 2 others (P L D 1976 S C 234) that "it was hardly realised that the site plan itself is not a substantive piece of evidence which could be sued to contradict or discredit the unchallenged evidence of the three eye‑witnesses." It is true that Muhammad Israil and Mst. Bibi Hawa on whose pointation the site plan was prepared were not produced at the trial, but the learned counsel for the appellant could not cite any authority in support of his plea that on this ground the site plan is to be excluded from consideration altogether.
15. The appellant is alleged to have absconded soon after the incident and S. H. O. Sarbiland Khan could not succeed in apprehending him. The co‑accused Muhammad Younas is still a fugitive from law. The warrants for their arrest under section 204, Cr. P. C. entrusted to F. C. Fazli Raziq could not be executed and he effected service of proclamations under sec tion 87, Cr. P. C. when questioned at the trial ass to how he would account for his abscondence after the occurrence till his release on ad interim bail on 27‑10‑1977 the appellant replied as under :‑
The police was not arresting me as they had made enquiries in the Mills I was serving and the police was satisfied that I was not present at the time of occurrence on the spot and I had not absconded.
S. H. O. Sarbiland Khan admitted that the appellant was placed in column No. 2 of the challan submitted in Court. The learned counsel for the appellant contended that the appellant had not absconded, was placed in column No. 2 of the challan and was in fact on duty at the time of the incident. He added that the plea of alibi was to be taken up in juxtaposition with the prosecution case and that the learned trial court gravely erred in excluding it from consideration altogether. He in this context referred to Aminullah v. The State (P L D 1976 S C 629) wherein it was inter alia observed that was not incumbent upon the accused to prove his alibi beyond a reasonable doubt or by a preponderance of evidence. An accused was entitled to acquittal if there was reasonable doubt upon consideration of the evidence offered by the prosecution to show the accused's presence and participation in the alleged crime and that offered by the accused to prove his presence elsewhere. Both the aspects should be considered together. It was farther observed that the best available evidence was to be produced to establish the plea of alibi.
16. The appellant produced Noorul Akbar (D. W. 1), Abdul Latif (D. W. 2) and Lajbar (D. W. 3) in support of his plea of alibi. Noorul Akbar (D. W. 1) is the Assistant Manager of the D. D. T. Factory, Nowshera, where the appellant was employed as Security Incharge. He stated that at about 10‑30 a. m. on the day of incident he directed the appellant to remain in the Factory premises till his return from Peshawar and that on his return he learned that the appellant had been charged for murder which took place in his village Pir Payee. He did not check up the Attendance Register as the appellant was not supposed to sign it and that thereafter the appellant remained absent from duty for a considerable time. He did not contact the police to record his statement. Abdul Latif (D. W. 2) is the Time‑Keeper of the Factory and he stated that the appellant was "Marked as off from duty in the Attendance Register on account of Friday" but he was with him between 9‑00 a. m. and 12‑30 p. m. on the day of incident which being Friday was a closed day. He did not offer himself to the police for recording his statement. The police, however, examined him on 15‑9‑1977 and had not told the Police Officer that the appellant was in his office at the time of the incident. He disclosed that his statement was recorded by the Police Officer without asking him. Lajbar (D. W. 3) stated that it being Friday he was off the duty and when he visited the Time Officer at 10‑45 a. in. in his office he found the appellant there. About a month back he was contacted by the appellant and he agreed to appear in defence. The learned trial Court found that the evidence pertaining to alibi was not satisfactory. The fact that both the former witnesses did not contact the police to give a statement with regard to the presence of the appellant in the premises of the Factory on the eventful day at the time when the incident took place cannot be lost sight of and their conduct is indeed questionable. The presence of the appellant was not marked in the Attendance Register as it being Friday he was not expected to be on duty. The appellant resided in a quarter allotted to him by the management and the Investigating Officer was not informed by the Assistant Manager and the Time‑Keeper about his presence. The distance between the Factory and the village of the appellant could be covered within 20 minutes on a cycle. Lajbar claimed to have visited the office of the Time‑Keeper for collecting a letter but it being Friday the post was not to be delivered at all. Taking up the plea of alibi in juxtaposition with the prosecution case we are of the view that satisfactory evidence was not produced to establish the plea and in view of the unimpeachable ocular testimony a thick cloud of doubt hangs over the plea of the appellant. It is in evidence that he made himself scarce the same day was not seen later within the premises of the Factory even by the witnesses produced by him. His conduct displayed a guilty conscience and the belated plea of alibi appears nothing but a concocted one. His abscondence would, in the circumstances go a long way to point to his guilt. The suggestion that the police was not inclined to arrest him as he had been shown in column No. 2 of the challan would not be tenable inasmuch as the incident took place on 5‑8‑1977 whereas the challan was prepared on 17‑11‑1977. The appellant could not be traced out till his formal arrest on 27‑10‑1977 when he was admitted to pre‑arrest interim bail.
17. The learned counsel for the appellant emphatically urged that the provisions of section 34, P. P. C. would not be attracted because Muhammad Younas had fired the fatal shot at Fazli Ghaffar whereas the appellant is alleged to have fired at the P. Ws. Fazal Nabi and Fazal Ghani. The appellant, according to the learned counsel, did not share the common intention with Muhammad Younas at all. It escaped his notice that the appellant and his son had entered the house of the deceased armed with Topaks' ostensibly to use them as pre-planned. The nature of the weapons carried by them would legitimately lead to the inference that they went prepared to use them on the inmates of the house they had entered into. All the section 34, P. P. C. requires is that the accused is one of the participa tors in the joint criminal action in the course of which the murder is com mitted. The question of the applicability of the provisions of section 34, P. P. C. came up for consideration in Rasool Bakhsh v. The State (P L D 1970 S C 316) and the following observations were made :‑
There is no doubt that to bring a case within the ambit of section 34, P. P. C. it is necessary that some overt act or acts must be established to lead to the inference that the participators in the crime acted in pre‑concert or under some pre‑arranged plan but this does not mean that every participant in the crime must be shown to have committed the same kind of act. It is sufficient to show that they joined together in the commission of a particular act, for, then they must all be deemed to have intended the natural and inevitable consequences of that act even if some of them did nothing but merely helped by their presence in the commission of the act. The question thus resolves itself into this, namely; as to whether the person sought to be made constructively liable did do anything with an intention to co‑operate in the offence, if so he is liable. The appellant and his son carried guns, entered the house of the deceased, one of them fired at the deceased and the other at his sons and both left the spot together. Their conduct indicates the existence of pre‑concert and they did share common intention in committing the crime and, as such, the appellant cannot escape his liability with regard to the murder of Fazli Ghaffar.
18. Taking all the facts and circumstances into consideration we are of the view that the prosecution succeeded in bringing home the charge to the appellant beyond reasonable doubt and his conviction is well‑founded. The sentence awarded to the appellant is an adequate one and merits no interference. The appeal and the revision fail and are dismissed accordingly.
Appeal dismissed.
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