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Criminal Appeal No. 12 and Murder Reference No. 1 of 1986, decided on 24th September, 1986.
‑‑‑Ss. 302 & 34‑‑Witness‑‑Relation per se is, no ground to discard evidence of an interested witness unless it is proved that he was inimical to accused party.‑‑[Witness].
Sabir v. The State 1985 P Cr. L J 2723 ref.
‑‑‑Ss. 302 & 34‑‑Witness‑‑Mere fact that presence of witnesses and place where they were alleged to be present were not shown in site plan, held, would not invalidate their testimony.‑‑[Witness].
Ali Sher v. The State and 3 others P L D 1980 S C 317 ref.
‑‑‑Ss. 302 & 34‑‑Witness‑‑Chance witness‑‑Eye‑witnesses having successfully explained their presence at place of occurrence, held, would not be considered as chance witnesses.‑‑[Witness].
Sabir v. The State 1985 P Cr. L J 2723 ref.
‑‑‑Ss. 302 & 34‑‑Most vital part of body of deceased were not injured except the right lung‑‑Death, held, could not be instantaneous although could be immediate.
‑‑‑Ss. 302 & 34‑‑Medical evidence‑‑Medical evidence to be based upon certain physical data‑‑Insufficient data, held, could not be given overriding effect upon oral evidence coming from unimpeachable source‑‑Where medical evidence was not sufficient to furnish basis for throwing overboard testimony of witnesses whose presence at time of occurrence could not be denied, such evidence, held further, was inconsequential so far as direct ocular testimony was concerned.
Rasib and another v. The State 1985 S C M R 484 ref.
‑‑‑Ss. 302 & 34 ‑Recovery‑‑Weapon of offence not recovered from accused‑‑Such circumstance, held, would not cast any shadow of doubt over offence committed by accused.
‑‑‑Ss. 302 & 34‑‑Recovery‑‑Weapon of offence recovered from but of accused 10 days after his arrest‑‑Such circumstances, held would not in any way over-cloud guilt of accused when there was clear ocular evidence to prove his guilt.
‑‑‑Ss. 302 & 34‑‑Recovery‑‑Fact that gun recovered was not sealed immediately and was sent to Arms Expert after lapse of many days, held, would not be sufficient to make recovery doubtful where there was clear ocular evidence to prove guilt of accused.
‑‑‑Ss. 302 & 34‑‑Witness‑‑Illiterate witness, held, could not be expected to have a mathematical and accurate idea of distance.‑‑[Witness].
Usman v. The State 1984 P Cr. L J 1797 ref.
Aziz Ullah Memon for Appellant (in Criminal Appeal No. 12 of 1986).
Mir Muhammad Nawaz Marri, Asstt. A.‑G. for the State.
Azizullah Memon for Respondent (in Murder Reference No. 1 of 1986).
Dates of hearing: 30th July; 3rd, 4th, 6th August; 2nd, 3rd and 10th September, 1986.
Nauroz the appellant has submitted this appeal against his conviction under section 302, P.P.C., and sentence of death passed by the Sessions Judge, Sibi vide judgment dated 28th June, 1986. A Murder Reference No. 1 of 1986 has also been received from the said Sessions Judge. The judgment in the present appeal will also dispose of the said murder reference.
2. The case against the appellant and his acquitted co‑accused Ghaloo Jakhrani is disclosed in F.I.R. No. 135 of 1983 recorded in, Police Station, Jhatpat at 5‑30 p.m. on 3‑12‑1983 at the instance of complainant Taj Muhammad, brother of deceased Lal Muhammad alias Baggan. The complainant and his brother Shah Muhammad were present in their house on the aforesaid date when at about 4‑30 p.m. P.W. 3 Ali Hassan Jakhrani came to their house and informed them that their brother Lal Muhammad alias Baggan who had gone 2/3 days previously alongwith another brother of theirs Ahmad Khan to Village Shah Pur Tehsil Chattar for personal work had been murdered by the appellant and his acquitted co‑accused Ghaloo at Pathan Dip about 2/3 furlongs towards north of Judher Shakh at a Katcha passage and his dead body was lying on the Katcha road. On this report the complainant and his brother Shah Muhammad reached the place of incident immediately where they saw, their brother Lal Muhammad alias Baggan lying dead in a pool of blood. They found injuries of pellets on his beck side. They also found P.W. 5 Mir Hassan present at the spot near the dead body. The complainant was informed by both the aforesaid P.Ws. that they were going to their house situated at Slier Shori by foot and at Pathan Dip they met the deceased and while going further away they met the appellant and the aforesaid Ghaloo Jakhrani. The appellant and acquitted accused were armed with single barrel shot gun. Both the P.Ws. covered some more distance when they heard the report of fire shot and they saw the aforesaid two armed persons running towards the fields. The said P.Ws. returned back and saw Lal Muhammad lying injured on his back. He was alive at that time and informed both the P.Ws. that he had been injured by the appellant and the acquitted co‑accused on account of dispute over a woman and after some time he died. Both the accused decamped from the place of incident. The complainant charged both of them for the murder of his brother W Muhammad. The F.I.R. discloses the motive for the offence was that one month before the incident Lal Muhammad had married a widow whom Nouraz wanted to marry. The complainant left the dead body at the spot and his relatives for protection of the same and went to the P.S. to make the report. During investigation the alleged weapon of offence i.e. the single barrel shot gun was recovered from the house of Phaggan. The Sessions Judge Sibi charged the appellant, acquitted accused Abdul Nabi alias Ghalloo and Phaggan under section 302/34, P.P.C. for the murder of Lal Muhammad to which they pleaded not guilty and claimed trial. The State produced 10 prosecution witnesses in support of the prosecution case. Out of whom P.W. 3 Ali Hassan and P.W. 5 Mir Hassan are stated to be the eye‑witnesses of the occurrence. P.W. 2 Taj Muhammad proved the F.I.R. P.W. 4 Dr: Saif‑ur-Rehman performed post‑mortem examination of dead body of Lal Muhammad. P.W.9 Naib‑Tehsildar recorded the statement of accused Phaggan under section 164, Cr.P.C. P.W. 10 Faiz Muhammad carried out investigation of the case and the others are formal witnesses.
3. Appellant Nouraz was arrested on 5‑12‑1983, accused Phaggan was arrested, on 21‑12‑1983 and accused Abdul Nabi alias Ghalloo was arrested, on 14‑12‑1983.
4. Both the eye‑witnesses P.W. 3 Ali Hassan and P.W. 5 Mir Hassan have stated that they had first met deceased Lal Muhammad on the way near Pathan Dip and had exchanged greetings with him. Thereafter, they proceeded further and met appellant Nouraz and acquitted accused Ghaloo, the appellant was armed with a single barrel shot‑gun and' accused Ghalloo was empty handed they went further on and had covered some more distance when they heard the report of fire shot and looked back, they saw both the accused running away and the deceased lying on the ground, they reached the deceased and found him lying in a pool of blood injured on the back. The deceased informed them that he had been injured by the appellant and thereafter the injured died. In so far as the aforesaid facts are concerned there is no contradiction whatsoever in the testimony of both these eye‑witnesses. However, P.W.5 Mir Hassan is a cousin of the deceased whereas P.W. 3 Ali Hassan is not related to the complainant party. Both the eye‑ witnesses have further stated that the occurrence took place at about 4‑30 p.m. when the sun had not set and it had still day time. The evidence of both these eye‑witnesses would show that they had not seen the actual occurrence with their own eyes but had met first the deceased and then the appellant and his co‑accused Ghalloo and soon after they heard the report of fire shot, they looked back and saw both the accused running a pay and they also saw Lai Muhammad lying injured. They have both stated that when they reached the spot they found Lai Muhammad still alive and they informed them that the appellant had injured him by a gun‑shot. The defence could not shake this testimony of both these witnesses. However, it was urged by the learned counsel for the appellant that one of the eye‑witnesses, P.W. 5 Mir Hassan is a cousin of the complainant party and he is an interested witness and his evidence should not have been believed by the trial Court. However, mere relationship of the complainant party is no ground to discard the evidence of a relative. The evidence of such witness can only be discarded when it is proved that he was not only related to and interested in the complainant party but was also inimical towards the accused party. The evidence recorded in the case does not show that the said alleged interested witness was inimical to the accused party. However, the learned counsel for the appellant could not plead a‑single ground against the other eye‑witness P. W. Ali Hassan who is neither related to the complainant party nor has any enmity with the accused party. He is an independent and uninterested witness. This witness has clearly stated that he had seen the appellant armed with a shot‑gun and had also seen him running away immediately after the report of the fire‑shot. He reached the injured who was still alive and he charged the appellant for the said injury. We do not find any material on the record of the case to discard the testimony of this witness. There is a wealth of case‑law on the point that relation per se is no ground to discard the evidence of an interested witness unless it is proved that he was inimical to the accused party. We would content ourselves with quoting one of the latest judgments in this regard as reported in Sabir v. The State 1985 P Cr. L J 2723. The presence of both these witnesses at the spot has not been disproved. Their evidence has, therefore, to, be believed . In this connection it was further urged by Mr. Azizullah Memon, learned counsel for the appellant that both the eye‑witnesses have not been mentioned in the site plan and presence cannot be established. This point can not prevail for the simple reason that what grudge these two witnesses had got against the accused party to falsely implicate the appellant in a murder case. The mere fact that their presence is not mentioned in the site plan and the places where they were alleged to be present were not shown in the site plan would not invalidate their testimony. This can be at the most an omission at the part of the Investigating Officer. In this connection we respectfully draw benefit from the case of Ali Sheri v. The State and 3 others P L D 1980 S C 317. In the same connection it was further urged by Mr. Memon that the aforesaid two eye‑witnesses were chance witnesses. His contention was that there were many huts near the place of occurrence and no person therefrom had been produced as a witness. It is admitted that the place where the occurrence took place is a thoroughfare and is frequently used by the people and the possibility of witnesses going on that thoroughfare cannot be excluded. The eye‑witnesses have explained that they were proceeding towards their village, and it is not controverted that the said thoroughfare led to their village, as such their presence at the spot is proved beyond any doubt and they are not chance witnesses. In arriving at this conclusion we are fortified with the case of Sabir v. The State 1985 P Cr. L J 2723. It was further‑urged by Mr. Memon that both the witnesses allegedly saw the occurrence from a distance of 4/5 furlongs and they could not have clearly identified the accused party when they saw them running. This contention can be discarded for the simple reason that the said witnesses had immediately before the report of the fire‑shot had seen both the accused and tied exchanged greetings with them and they could not fail to identify them when they saw them running away. Besides no one else was available at the spot at that time.
5. It was then urged by Mr. Memon that Dr. Saifur Rehman appearing as P.W. 4 has stated that the deceased received one gun‑shot wound 1" x 1" in diameter on right side of back or chest at the level of 5th thoratic vertebra. Margins inverted, wounds of exit 6 in number on right shoulder each 1/8" x 1/8" on right shoulder. On internal examination the doctor found right lung injured, 4th and 5th ribs fractured, and right scapula fractured. The doctor did not mention in the post‑mortem report the time between the death and injury elapsed but appearing as P.W. 4 he stated that the death was instantaneous. Mr. Memon has urged that as according to the opinion of the doctor the death was instantaneous so the deceased was not alive when the witnesses reached him. We have given our serious consideration to this aspect of the matter and we are of the opinion that most vital parts of the body of the deceased were not injured except the right lung. In such a case death could not be instantaneous although it could be immediate. Moreover, the doctor did not specify the time between injury and death in the post‑mortem report and the statement of the deceased dying instantaneously given in cross‑examination appears us to be art obliging concession to the accused party. We are, therefore, inclined not to believe this part of the testimony of the doctor. There is a difference between an immediate death and an instantaneous death. In the latter case the injured dies there and then after receiving the injuries but in the former case the injured may die immediately but not there and then. It has been held by the Hon'ble Supreme Court in the case of Rasib and another v. The State 1985 S C M R 484 that:‑‑
"Medical evidence is expert evidence based upon certain physical data and if data lacks insufficiency, it cannot be given overriding effect upon oral evidence coming from unimpeachable source. Such evidence is not sufficient to furnish basis for throwing overboard testimony of a witness whose presence at time of occurrence cannot be easily denied. Medical evidence, therefore, is inconsequential so far as direct ocular testimony in a case is concerned."
Both the eye‑witnesses have deposed that when they reached deceased Lai Muhammad they found him alive and in their presence he charged the appellant for injuring him. In view of such direct evidence we would discard the opinion of the doctor. We would, therefore, respectfully place reliance on the aforesaid conclusions of the Hon'ble Supreme Court in this connection.
6. It was then urged by the learned counsel for the appellant that the shotgun which is alleged to be the weapon of offence was not recovered from the appellant. We agree with this contention. However, this circumstance does not cast any shadow of doubt over the offence committed by the appellant. It was then urged by Mr. Memon that acquitted accused Phaggan was arrested, on 21‑12‑1983 and the gun was recovered, on 31‑12‑1983 at his instance when he made a confessional statement before P. W. 9 Naib‑Tehsildar Muhammad Jan who had recorded the confessional statement under section 164, Cr.P.C. of the acquitted accused Phaggen. This accused was charged alongwith the appellant simply for the reason that the gun was recovered from his house. Otherwise he was neither present alongwith the other two accused when the offence was committed nor he took any other part in the commission of the offence. He has only stated in his confessional statement that the said shot gun was brought to his house by accused Nouroz and was given to his mother to be hidden there and he produced it to the 1.0. Although circumstance of recovery of the shot gun has become somewhat doubtful because it was recovered from the but of accused Phaggan 10 days after his arrest but this does not in any way over‑cloud the guilt of the appellant in view of the clear ocular evidence produced H in the case. In the same connection it was urged by Mr. Memon that the shot gun was not sealed immediately after its recovery and was sent to the arms expert after lapse of many days and that the case against the appellant had become doubtful but for the reasons aforesaid I we are unable to accept this contention as well.
7. Mr. Memon then raised another contention that it has come in the evidence of the complainant that although I.O. found bloodstained at the spot and also recovered an empty but he did not prepare the recovery memos. at the spot and this circumstance had made the incident doubtful. We have considered this aspect of the matter and we have also found from the evidence of P W. 10 Faiz Muhammad who investigated the case that he had prepared all the recovery memos at the spot. We are of the opinion that perhaps the complainant Tai Muhammad P.W. 2 a did not realize the implication of this question put to him in cross examination. There is no doubt in our mind that the recovery memos were not prepared at the spot and for this reason we are unable to accept this contention also.
8. Mr. Memon further contended that there were many improvements and contradictions in the prosecution case when it came to light during the trial. He alleged that originally the eye‑witnesses had said that the appellant and accused Ghalloo were both armed but during the trial they deposed that only the appellant was armed. He further urged that both the eye‑witnesses have given different distances at different stages of the trial of meeting the accused and the complainant party, and the distance from which they saw the appellant running away. This contention is also not tenable for two‑fold reasons, firstly the witnesses are illiterate village people who cannot be expected to have a mathematical and accurate idea of distance, and secondly, the witnesses were not confronted with such alleged improvements and contradictions. In this connection we rely upon the case of Usman v. The State 1984 P Cr. L J 1797.
9. It was lastly urged by the learned counsel for the appellant that the case was not proved beyond doubt. His contention was that there was no eye‑witness, who actually saw the appellant firing at the deceased. No doubt there is no eye‑witness who actually saw the commission of the offence by the appellant but both the eye‑witnesses had seen the appellant armed with a shot gun and running away immediately after the fire shot. They immediately reached the spot and the deceased charged the appellant for causing him the injury. In our opinion there is as such sufficient evidence to prove the got of the appellant beyond any doubt.
10. It was also urged by Mr. Memon that the prosecution had failed to prove, any motive against the appellant. A motive regarding dispute about .the marriage of a woman is mentioned in the F.I.R. Although no evidence was produced to prove this motive but this is also a fact that many offences are committed without any motive or the motive may be in the mind of the killer. This contention is also devoid of any force.
12. All the three accused in their statements under section 342, Cr.P.C. and in their deposition on oath have denied the commission of the offence but they failed to discredit the prosecution case or to bring any material on record to throw any doubt in the prosecution evidence.
13. There is no material on the record to connect accused Phaggan with the commission of the offence. There was also no material on the record to prove that accused Abdul Nabi alias Ghalloo had taken any part in the commission of the offence. The learned Sessions Judge has rightly acquitted them. On the contrary there was sufficient material on the record to connect the appellant with the commission of the offence and the appellant failed to point out any doubt regarding the offence committed by him. He has been rightly convicted by the learned Sessions Judge under section 302, P.P.C. for committing the murder of Lal Muhammad. The appellant also failed to show any mitigating circumstance to lessen the severity of his crime. The learned Sessions Judge, therefore, rightly sentenced him to suffer death by hanging. We would, therefore, uphold the impugned judgment and would dismiss the appeal. The murder reference is answered accordingly.
M.B.A. Appeal dismissed.
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