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Criminal Appeal No. 5 of 1Jd5, decided on 21st July, 1986.
‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S.154‑‑First Information Report‑‑Delay in lodging‑‑Delay simplicitor, held, was not fatal prosecution case.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Fact that prosecution witnesses, were closely related to deceased held, would not make them interested witnesses inasmuch as there was no evidence on record to suggest the anyone of them had motive of his own to falsely implicate accused in crime‑‑Mere relationship with deceased could not be a ground on which sworn testimony of a witness could be thrown out.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Prosecution witness not deposing to fact of having himself seen accused firing at deceased and hitting him with that shot but stating that all of a sudden he heard report of a single fire shot which hit deceased who fell down and he ran away order to save his life‑‑Trial Court making statement of such witness as basis for coming to conclusion that shot fired by accused had hit deceased‑‑Statement of said witness excluded from consideration while determining fact whether or not shot fired by accused had proved fatal for deceased‑‑Held, presence of said witness on spot, however, mot being doubtful, his statement which was made in a straightforward manner and not shattered in lengthy cross‑examination, could be used for other purposes such as proving presence of other prosecution witness and accused on spot at relevant time and fact that deceased had died of violence.
‑‑‑S. 302‑‑Eye‑witnesses stated at trial that in his presence accused fired at deceased and shot proved effective and deceased died as result thereof‑‑Presence of eye‑witness to occurrence corroborated by another prosecution witness whose presence at spot also undoubted‑‑No enmity of serious nature existed between eye‑witness and complainant except altercation between parties over grazing of cattle in land of complainant‑‑Eye‑witness remained consistent in tics charge right from beginning till recording of his statement at trial‑‑Testimony was further supported by medical evidence and recoveries of pellets and cardboard discs from spot‑‑Accused who was serving in police force was assigned effective role of firing at deceased in first report‑‑Accused absconded and made himself inaccessible to investigating agency with connivance of police before surrendering himself‑‑Such circumstance constituted a good corroborative evidence against him and supported eye‑witness's account of occurrence‑‑ Accused's attack on deceased not one of a sudden fight in heat of passion upon a sudden quarrel but of a premeditated murder‑‑Circumstantial evidence in form of recoveries of incriminating articles from spot and abscondence of deceased after occurrence‑ providing enough material to connect accused with crime besides ocular account and medical opinion‑ Conviction of accused under S.302, Penal Code, and sentence of imprisonment for life maintained in circumstances.
‑‑S. 302‑‑Medical evidence‑‑Opinion of doctor that possibility of injuries' having been caused by bullets could not be excluded, held, a mere opinion and had no value in presence of recovery evidence and statement of eye‑witness made at trial.
Mian Hisamud Din for Appellant.
Mian M. Ajmal, Asstt. A.‑G. for the State.
Date of hearing: 11th May, 1986.
Sultan Zarin son of Muhammad Jan, aged 13, resident of village Gabbari, died of violence on 28‑2‑1981 at about 'Deegarvela' within the limits of village Graywan, Police Station, Shakardara. The report of the occurrence was made by his father Muhammad Jan (P.W.10) the same day at 22‑15 hours, at Police Station, Shakardara. The first informant stated before the police that same day at about 'Deegarvela' he was present in his land situated in the limits of village Graywan alongwith his nephew Shah Nawaz who was present at some distance from him, that Sardar Khan Badshah Gut and Inayat Knan sons of Gut Baz Khan and Rustam Khan son of Janbaz, residents of village Graywan, were also present there armed with 'Topaks' at some distance from him, that when Sultan Zarin (deceased) while coming to him from his house situated in village Gabbari, reached near Sardar Khan and his three companions, already named, Badshah Gut, Inayat Khan and Rustam Khan directed Sardar Khan not to spare him, upon which Sardar Khan fired with his 'Topak' hitting Sultan Zarin who died on the spot and he and his nephew Shah Nawaz, being empty handed, could do nothing. it was further mentioned to the police that there was no previous enmity between them and the accused except altercation between them upon grazing of cattle by the accused in the land.
2. The first report (Exh.P.A.) was recorded by H.C. Farid Khan (P.W.12), who after recording the same read it to the first informant who in token of correctness of its contents thumb‑impressed the same. Since the dead body had been brought to the police station, H.C. Farid Khan (P.W.12) prepared the injury sheet (Exh.P.D.) and inquest report (Exh.P.D./1) of the deceased and then despatched the dead body to hospital at Kohat for post‑mortem examination. H.C. Farid Khan then proceeded to the spot for investigating the case: He prepared the site plan (Exh.P.B.) at the instance of eye‑witnesses. He also recovered from the spot, in presence of marginal witnesses to the recovery memo. Exh.P.C. two pellets, (P.2) and four cardboard discs (P.3). The blood‑stained earth with small pebbles was also secured by the I.O. from the spot, vide memo. Exh.P.C./1. The shirt (P.1) of the deceased brought by F.C. Ajab Khan from the Doctor was also secured by him, vide memo. Exh.P.C./2. He examined prosecution witnesses and also made arrest of accused Inayat Khan and Rustam Khan same day. Since the other two accused, namely, Badshah Gul and Sardar Khan, were allegedly absconding, necessary warrants of arrest for them were obtained which were returned un-served, where after proclamations were issued and served. Badshah Gul and Sardar Khan surrendered before police after long time, the former on 15‑2‑1982 and the latter on 23‑5‑1983.
3. Upon submission of supplementary challan, the case was tried by the learned Sessions Judge, Kohat, before whom the accused pleaded not guilty and professed innocence. Accused Badshah Gul and Sardar Khan denied having absconded anal in reply to that question stated that they being in Government service, the former being in Army and the latter being in police remained on duty at various stations and when they came to their village on leave three days before their arrest they learnt of the charge and then voluntarily surrendered before the then S. H.O. Police Station, Shakardara. On conclusion of the trial the learned Sessions Judge, Kohat formed the view that to accused Badshah Gul Inayat Khan and Rustam Khan the role of proverbial 'Lalkara' had been attributed with no overt act committed by them towards the killing of Sultan Zarin, who was fatally fired at, according to prosecution's own case, only by accused Sardar Khan. He, therefore, acquitted all the three accused named above and having found accused Sardar Khan alone responsible for the killing of Sultan Zarin, convicted him under section 302, P.P.C. and sentenced him to life imprisonment and a fine of Rs.5,000, in default of payment of which he has to suffer further R.I. for two years. The fine, if recovered, was directed to be paid to Muhammad Jan (P.W.10), the father of Sultan Zarin (deceased). It is against his conviction and sentence that Sardar Khan has filed this appeal.
4. The post‑mortem examination of Sultan Zarin deceased was conducted, on 1‑3‑1981 at 11‑15 hours, by Dr. Fazale Rehman (P.W.3), who found the following:‑-
External Examination.
Stout body. Rigor mortis present in upper limbs and neck.
Wounds.
(1) A fire‑arm entrance wound over right cheek about 1 from right eye. Wound was about " x ". No charring marks present.
(2) A fire‑arm exit wound over back of head about " x ".
(3) A fire‑arm entrance wound over right cheek about " from right upper limb. Wound was " x ".
(4) A fire‑arm exit wound over right side of back of neck about " x .
Internal examination.
Skull....fractured occipital bone. Stomach empty. In the opinion of the doctor, deceased died of shock and haemorrhage due to injuries to skull caused by fire‑arm. Probable time which elapsed between injuries and death was about 1 to 2 hours and probable time which elapsed between death and post‑mortem examination was 16 to 20 hours. The doctor testified at the trial to the correctness of post‑mortem report (Exh.P.W.) and his having signed the injury sheet Exh.P.D. and inquest report Exh.N.D./1. In the opinion of the doctor, wound No.2 was exit of wound No. 1 and wound No. 4 was exit of wound No. 3 and the possibility of these wounds having been caused by bullets could not be excluded.
5. At the trial, the prosecution relied on the ocular evidence furnished by Muhammad Jan (P.W.10) and Shah Nawaz (P.W.11), the medical evidence, the circumstantial evidence in the form of recoveries of .the incriminating articles and the absconsion of the two accused for a long time. The learned trial Judge believed the ocular witnesses as truthful qua Sardar Khan appellant. In his view, corroboration to the ocular version was also available from the medical evidence, the recoveries of the incriminating articles from the spot and the absconsion of the appellant. In learned trial Judge's view, the ocular evidence in this case did not require corroboration. This all was believed, as already mentioned, qua the appellant, and not against the other accused who were acquitted of the charge.
6. Mian Hisam‑ud‑Din, Advocate, appearing for the appellant, argued that the first report having been lodged after unexplained sufficient delay, was the result of deliberations and consultations leading to involvement of innocent persons out of whom three were acquitted by the learned trial Judge. He contended that the two eye‑witnesses, Muhammad Jan (P.W.10) and Shah Nawaz (P.W.11), were interested witnesses, being closely related to the deceased and inimically disposed towards the appellant, and for that reason, reliance could not have been placed on their testimony while convicting the appellant when qua the other accused the same testimony had not been believed. His other contention was that the site plan prepared at the instance of the eye‑witnesses belied their version as the pellets and cardboard discs could not travel to the places from where they were recovered if the shot had been fired from point No. 4, where the appellant was stated to be at the relevant time. The learned counsel contended that the medical evidence also belied the prosecution case. He further contended that the so‑called absconsion of the appellant had not been proved in accordance with law and could not, therefore, be used against him as a corroborative piece of evidence for securing his conviction. His last contention was that in case appellant was found having committed the crime, then the occurrence being the result of a sudden light with no pre‑meditation, his conviction may be altered from that under section 302, P.P.C. to one under section 304, P.P.C. and the sentence reduced.
7. The learned Assistant Advocate‑General contended that keeping in view the distance of the police station from the place of occurrence, there was no delay in making the first report and no question having been asked by the defence from the complainant in that regard and also regarding the fact as to how and by what mode the dead body was carried to the police station, it could not be urged that the first report was made with delay. He also argued that it was wrong to say that ocular witnesses were interested witnesses as there was nothing on the record to show that they had motive to falsely implicate the appellant in the crime. No previous blood feud or enmity of serious nature existed between the complainant party and the accused‑party and for that reason, laying of false charge of murder by the witnesses on the door of the appellant was out of question. He contended that the fact that the statements of the eye‑witnesses were not believed qua other accused was not a ground to be urged that the same be disbelieved qua the appellant. His other contention was that it was wrong to say that the site plan belied the prosecution story or the testimony of the eye‑witnessed It was, rather, in line with the prosecution version, he contended. The doctor's statement given in answer to questions by the defence was a mere opinion and could not override or contradict the other evidence led by the prosecution, the learned Assistant Advocate‑General contended. He further argued that it was a daylight occurrence and the question of mistaken identity of the accused, therefore, did not arise. His last contention was that it was pre‑meditated murder and the learned trial Judge was right in recording conviction of the appellant under section 302, P.P.C.
8. We have pondered over the record and given it our anxious consideration in the light other aforesaid arguments of the learned counsel appearing before us. In the first report it was mentioned that the occurrence had taken place on 28‑2‑181 at 'Deegarvela' and the report had been lodged same day at 22‑15 hours. The distance between the place of occurrence and the police station was 15/16 miles. We have no information from the record as to in which manner the dead body of Sultan Zarin was taken by the complainant to the police station. No question was put to him by the defence in this regard. Similarly, the defence did not ask any question from the complainant respecting the delay. That being so, it could not be said or urged that the time intervening between the report and the occurrence could not have been consumed in taking the dead body to the police station. Further, there is nothing on the record to show that the prosecution has gained any benefit out of the alleged delay. The delay simplicitor is not fatal to the prosecution case. In the circumstances, this ground was not available to the appellant to be urged by him either before the learned trial Judge or before us.
9. It is true that Muhammad Jan (P.W.10) was the father of the deceased and Shah Nawaz (P.W.11) was closely related to him. This fact alone, however, would not make them as interested witnesses, inasmuch as there was no evidence on the record to suggest that anyone of them had motive of his own to falsely implicate the appellant in the crime. Mere relationship with the deceased cannot be a ground on which the sworn testimony of a witness can be thrown out. However, while closely examining the statement of Shah Nawaz (P.W.11), we have discovered that he did not depose to the fact of having himself seen the appellant firing at the deceased and hitting him with that shot. To quote his own words, Shah Nawaz (P.W.11) stated, all of a sudden. I heard the report of a single fire shot. The fire shot hit Sultan Zarin deceased and he fell down and I ran away in order save my life. This portion of the statement, or even the whole of his statement, cannot be interpreted to mean that this witness had actually seen that Sultan Zarin was fatally fired at by Sardar Khan appellant In our view, the learned trial Judge was not right in making the statement of this witness as basis for coming to the conclusion that the shot fired by the appellant had hit the deceased. We would, therefore, exclude from consideration the statement of Shah Nawaz (P.W.11) while determining the fact whether or not the shot fired by Sardar Khan appellant had proved fatal for the deceased. However, his presence on the spot not being doubtful, his statement given in straightforward manner, having not been shattered in lengthy cross‑examination, can be used by us for other purposes, such as, proving the presence of Muhammad Jan (P.W.10) and the appellant on the spot at the relevant time and the fact that Sultan Zarin had died of violence. No doubt. Shah Nawaz improved upon his statement at the trial but that improvement was not material, inasmuch as it did not relate to the main question relating to the actual commission of the crime by the appellant. We would, therefore, overlook the improvement made by him in his statement at the trial. Coming to the statement of Muhammad Jan (P.W.10), he claimed to be an eye‑witness to the occurrence and also claimed that Shah Nawaz (P.W.11) was present on the spot at the relevant time. The presence of this witness near the scene of the occurrence was corroborated by Shah Nawaz (P.W.11), whose presence on the spot at the relent time was neither doubted by the learned trial Judge nor by us. Muhammad Jan (P. W.10) stated at the trial that in his presence Sardar Khan appellant fired at Sultan Zarin deceased and the shot proving effective, the deceased died as a result thereof. This witness had no previous enmity of serious nature with the appellant, the only enmity being, altercation between the complainant party and the accused‑party on. grazing of cattle in the land of the complainant situated near the houses of the accused party, near which occurrence had taken place. This witness was not put any question by the defence on material point relating to the effective firing by the appellant on the deceased. His. presence on the spot at the relevant time was, however, questioned by the defence with an unfavourable reply. This witness has been consistent in his charge right from the beginning till he recorded his statement at the trial. The testimony of this witness was further supported by the medical evidence and the recoveries of pellets and cardboard discs from, the spot. For these reasons, the learned trial Judge seems to have accepted his presence on the spot and his having seen the occurrence. We have no good reasons to disagree with him in this regard. That being so, the statement of Muhammad Jan (P.W.10) could become basis for conviction of the appellant and was rightly relied upon by the learned trial Judge.
10. It was wrong to urge that the site plan be tied the prosecution case. If one were to fire a shot from point No. 4 shown in the site plan, the pallets and cardboard discs could reach points Nos. 8 and 9, which were near to point No.1 where the deceased was when he was effectively fired at. Similarly, it was wrong to urge that the medical evidence did not support the prosecution version. The‑injuries found on the dead body of Sultan Zarin from a distance given in the site plan, and mentioned in his version by Muhammad Jan (P.W.10), could have been caused by the pellets and by a single shot. The opinion of the doctor that the possibility of injuries having been caused by the bullets could not be excluded was a mere opinion and has no value in presence of the recoveries referred to above and the statement given at the trial by the eye‑witness Muhammad Jan (P.W.10).
11. The appellant was serving ‑in police force during the relevant days. He continued to serve in the same force after the occurrence till he surrendered before S.I. Rehman‑ud‑Din (P.W.4). He had been assigned effective role of firing at the deceased in the first report‑ and his brother Inayat Khan and his relative Rustam Khan had been arrested by the police in this very case. In the circumstances, it was unbelievable that the appellant had no knowledge of the case or that he had been charged for committing the crime. We have no doubt in our mind that the appellant had deliberately, and with the connivance of the police, made himself inaccessible to the Investigating Agency in this case. This circumstance constituted a good corroborative evidence and was rightly taken into consideration by the learned trial Judge in support of the eye‑witness account furnished by Muhammad Jan (P.W.10).
12. Muhammad Jan (P.W.10) has stated at the trial that when he reached his land situated near the place of occurrence, he saw the accused roaming about armed with shotgun in suspicious circumstances. The occurrence took place soon after and the appellant by firing at the deceased had killed him. This would show that the appellant had come prepared to the scene of occurrence armed with a shotgun which he effectively used. The case was, therefore, not of a sudden fight in the heat of passion upon a sudden quarrel, but was one of a premeditated murder. The argument of the learned counsel for the appellant that conviction should have been recorded under section 304, P. P. C was misconceived.
13. To sum up, there was available on the record, the statement of eye‑witness Muhammad Jan (P.W.10), whose presence on the spot at the relevant time was supported by Shah Nawaz (P.W.11), the medical evidence, the circumstantial evidence in the form of recoveries of I incriminating articles from the spot and the abscondence of the appellant after the occurrence. This material was enough to connect the appellant with the crime. The learned trial Judge was, therefore, right in convicting him for the murder of Sultan Zarin under section 302, P.P.C.
14. For the aforesaid reasons this appeal has no merit. While maintaining the conviction of the appellant, as also the sentence awarded to him by the learned trial Judge, we would, hereby, dismiss this appeal.
M.Y.H. Appeal dismissed.
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