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Criminal Appeal No. 29 and Murder Reference No. 7 of 1986, decided on 17th December, 1986.
‑‑‑ Appreciation of evidence‑‑Defence cannot take benefit of the reply to a general question of prosecution witness who is a villageman and cannot be expected to give mathematical and accurate idea of time.‑ [Evidence].
‑‑‑Appreciation of evidence‑‑Inference‑‑Inference cannot be drawn or presumptions which are not substantiated from material on record.
‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 154‑‑First Information Report‑‑Motive‑‑Fact regarding motive must not be fully explained in F.I.R.
‑‑‑S. 302‑‑Appreciation of evidence‑‑Failure of Investigating Officer to mention in F.I.R. as to where eye‑witnesses were standing at the time of occurrence though an omission but would not invalidate testimony of eye witnesses who were otherwise reliable.
Nauroz v. The State 1986 P Cr. L J 3019 ref.
‑‑S. 302‑‑Appreciation of evidence‑‑One prosecution witness father of deceased and the other his relative‑‑Parties otherwise collateral, and no cause on record was shown to establish that prosecution witness falsely, implicated accused out of malice‑‑Mere relationship, held: could not be a ground to discredit a witness, if otherwise his deposition was found confidence‑inspiring, particularly when inimical attitude towards the accused was missing.‑‑[Witness].
‑‑‑S. 302‑‑Appreciation of evidence‑‑Prosecution witness who was present earlier at the place of occurrence but was not present at the time of occurrence, was not produced‑‑Non‑production of such witness, held, would not be an unfavourable circumstance to the prosecution.
‑‑S. 302‑‑Appreciation of evidence‑‑Alibi, plea of‑‑Such plea, if taken as a defence require strict and positive proof in order to brush aside incriminating material as adduced by prosecution.‑‑[Alibi].
‑‑‑S. 302‑‑Appreciation of evidence‑‑Once it is established that witnesses were present at place of occurrence, their deposition cannot be held unreliable merely because they were not residents of that area.‑ [Witness].
‑‑‑S. 302‑‑Appreciation of evidence‑‑Testimony of eye‑witnesses not only unimpeachable but confidence inspiring‑‑Witnesses fully corroborated prosecution version in all respects‑‑Investigating Officer corroborated prosecution in respect of time and place of occurrence‑ Chemical Examiner's report also corroborated prosecution‑ ‑Absconsion of accused was a further circumstantial evidence to support prosecution story‑‑Cumulative effect of prosecution evidence, held, was that accused was guilty of offence.
‑‑‑S. 302‑‑Motive‑‑Evidence of motive remained shrouded in mystry‑ When the motive for offence is either not proved or not satisfactorily established, it is a circumstance where extreme penalty of death is usually commuted into lesser punishment of life imprisonment.‑‑[Motive‑ Sentence].
Sarfraz and others v. State 1985 S C M R 501; Ali Hussain and others v. Mukhtar and 2 others 1983 S C M R 806; Muzamil Din and others v. Noor Hussain and others 1985 S C M R 495; Muhammad Iqbal and others v. State 1984 S C M R 1184 ref.
‑‑‑Ss. 302 & 34‑‑Common intention‑‑Mere presence of persons on the scene of occurrence, held, would not necessarily mean that they acted in furtherance of common intention in commission of offence‑‑Some sort of pre‑arranged plan must be proved that criminal act was done in concert pursuant to the pre‑arranged plan‑‑Direct evidence though was not always expected but cummulative effect of entire circumstances were to be seen and assessed in order to reach conclusion that intention was there‑‑ Intention being a mental condition could be gathered from circumstances of each case.‑‑[Common intention].
1969 S C M R 454 ref.
Tariq Mehmood for Appellants.
Muhammad Nawaz Ahmed for the State.
Dates of hearing: 24th and 25th November, 1986.
‑Ali Sher aged about 30 years, Bahadur aged about 60 years and Ghaus Bakhsh aged about 32 years were tried by the Additional Sessions Judge, Usta Muhammad for an offence under section 302/34, P.P.C. The learned trial Judge convicted all the above‑mentioned three accused persons and passed the following sentences:‑ .
(1) Ali Sher was sentenced to death as well as a fine of Rs.5,000 in default to undergo 6 months' rigorous imprisonment.
(2) Bahadur was sentenced to life imprisonment and fine of Rs.5,000 in default 6 months' rigorous imprisonment.
(3) Ghaus Bakhsh was sentenced to life imprisonment and a fine of Rs.5,000 in default 6 months' rigorous imprisonment.
The accused persons have filed this Criminal Appeal against their conviction and sentences. The reference under section 374, Cr.P.C., made by the Additional Sessions Judge, Usta Muhammad No. 7 of 1986 for confirmation of death sentence awarded to Ali Sher appellant is also before us. We, therefore, propose to dispose of both the appeals as well as reference by this common judgment.
The facts of the case are that on 10‑8‑1982 at about 5‑30 p.m. an incident took place in the fields near village Faqirabad where deceased Abdul Latif was killed allegedly by the accused persons while he was busy in transplanting paddy seedlings.
The F.I.R. No. 66 of 1982 (Exh. P.A.) was registered at 8‑30 p.m. in the Police Station Usta Muhammad which was lodged by Murid Khan the father of the deceased Abdul Latif.
Another important aspect is that the accused Ali Sher absconded after alleged commission of the offence and was arrested at Turbat on 15‑ 6‑ 1984. He was handed over to Usta Muhammad police on 28‑ 6‑ 1984 Remaining two accused persons namely Bahadur and Ghaus Bakhsh were arrested on 31‑8‑1982.
The S.H.O., Inspector Jalal Din (P.W.5) went to the place of incident. He examined the dead body and prepared Inquest Report (Exh. P.5). Inventory of the site inspection (Exh. 5‑C) was also prepared and site plan (Exh. P.G.) was prepared as well. The S.H.O. secured paddy seedlings from the place of incident vide inventory (Exh. P.G.). The S.H.O. also took into possession an empty lying on the place of incident vide Exh. P.B. The dead body was sent to Civil Hospital Jhatpat for post‑mortem examination, Nothing was recovered on the search of the house of Bahadur. However, on 14‑9‑1982 in a similar search Article I' (hatchet) was recovered from the house of accused Ghaus Bakhsh which was taken into possession vide Exh. P.E. The paddy seedlings were sent to the Chemical Examiner and report of the Chemical Examiner is Exh. P.H.
The motive for the crime was described as one Wali Muhammad brother of Ali Sher accused was allegedly missing and the accused suspected him to have been killed by the informant Murid Khan and others.
The charge was framed against Bahadur and Ghaus Bakhsh alias Ghausoo on 1‑2‑1983 and regarding Ali Sher it was framed on 17‑11‑1984 since he was allegedly absconding.
The learned Additional Sessions Judge, Jhatpat vide judgment., dated 30‑9‑1986 being convinced from the testimony of P.W. Murid Khan and Mir Hassan which according to him was corroborated by medical evidence, convicted all the three accused persons and passed the sentence mentioned hereinabove.
Dr. Illahi Bakhsh, Medical Officer was examined who described the following injuries on the body of the deceased:‑‑
(1) Gunshot wound on the left side back of chest 1/4" in diameter, inverted irregular margins and blackening around the wound at the level of 5th and 6th ribs wound of entrance.
(2) Gunshot wound on the front of chest on the left side 1/2" in diameter averted margins (wound of exit),
On internal examination the following injuries were noted:‑‑
On examination of skull all the bones of skull menanges blood vessels and brain matter were normal.
On examination of chest there was fracture of 5th and 6th ribs on the left side on the back of chest. The pleura was torn. The left lung in the middle lobe region was ruptured and collapsed. Blood clot formation was found on left lung. Both ventricles of the heart were ruptured and there was fracture of 6th and 8th ribs in interior left side of chest.
On examination of abdomen all the abdominal viscries were normal and other bone joints were healthy.
The death in Doctor's opinion was due to injury to vital organs i.e. heart and lung, shock and death. The weapon used was fire‑arm.
The probability of time between injury and death was sudden and probability of time between death and post‑mortem examination was about 12 to 14 hours.
The prosecution produced following evidence:‑‑
(1) Medical evidence.
(2) Ocular evidence.
(3) Circumstantial evidence.
(4) Motive.
(5) Absconsion of the accused Ali Sher.
At the trial, the prosecution examined eight witnesses namely P.W.1 Murid Khan, P.W. 2 Mir Hassan who were eye‑witnesses of the incident. P.W. 3 Ghulam Hyder who was Mashir to the recovery of the hatchet, P.W. 4, Muhammad Iqbal Head Constable No. 419 was Mashir to the Angosha of the deceased Abdul Latif, P.W. 5 Inspector Jalal Din who conducted the investigation of the case, P.W. 6, Ghulam Nabi, Mashir to the recovery of shotgun from the house of accused Ali Sher, P.W.7 Ghaus Bakhsh is also inventory witness of shotgun from the house of accused Ali Sher and P.W 8 Dr. Illahi Bakhsh.
All the three accused persons pleaded not guilty and recorded their statement on oath separately. None of the accused persons produced any defence witnesses.
We have heard Mr. Tariq Mahmood, the learned counsel for the appellant and Mr. Muhammad Nawaz Ahmed, learned counsel appearing for state at considerable length.
For better appreciation, we would like to take the case of accused Ali Sher first and would dilate upon the points raised by the learned counsel for the appellant. Although the learned counsel for the appellant addressed us firstly on the point of motive, but it would be expedient and profitable to dilate upon firstly on the points raised in respect of F.I.R. Regarding F.I.R. the learned counsel submitted as follows:‑‑
(1) The F.I.R. was registered after conducting of preliminary investigations by the S.H.O.
(2) The F.I.R. was not lodged on the day of incident but on the next day i.e. 11‑8‑1982.
(3) The F.I.R. was registered at the place of occurrence, and not in police station.
(4) The contents of the F.I.R. to the extent of motive were false.
The F.I.R. No. 66 of 1982 is Exh. P.A. The column No. I of the F.I.R. indicates the date and the time as 10‑8‑1982 at 8‑30 p.m. However, unfortunately in column No. 2 the time for proceeding to the place of occurrence from the police station is torn and thus, not legible.
The learned counsel submitted that from the contents of the F.I.R. it is clearly indicated that the occurrence took place a day prior to filing of the F.I.R. He invited our attention to the contents of the F.I.R. where the First Information stated, "yesterday in the evening time, I my son Abdul Latif, Abdul Qadir and Mir Hassan alias Mir Burrira were busy in transplantation at about 5‑30 p.m. that Ali Sher son of Ali Bakhsh in his hand a single barrel gun, who is my maternal‑nephew, Bahadur son of Ghaus Bakhsh in his hand a single barrel gun and Ghaus Bakhsh son of Khuda Bakhsh in his hand a hatchet, all by caste Burrira, residents of Deb Noor Pur near Faqirabad came and Ali Sher fired at my son:"
It was argued by the learned counsel for the appellant that there can be no two interpretation of the above averments except that alleged incident took place a day prior to the lodging of the said report. He, therefore, argued that the F.I.R. was not lodged on the same day. Another limb of the argument of the learned counsel in this respect was that on the back page of the Exh. P.A. where the copies are mentioned to have been despatched indicate the date as 12‑8‑1982. This according to the counsel further corroborates his contention that F.I.R. was not lodged on 10‑8‑1982 but on 11‑8‑1982. He, therefore, vehemently urged that no importance should be attached to the F.I.R. since it has been lodged not on the day of occurrence. It is indicated in F.I.R. that the distance between the place of occurrence and that of police station Usta Muhammad is 10 miles as is indicated in second column at S.No. 4 of the F.I.R.
We are unable to subscribe to this view of the learned counsel for the appellant, for the reasons firstly that the learned counsel has lost sight of the fact that in the last but one sentence of the F.I.R. the informant stated that on account of this suspicion Ali Sher, Bahadur and Ghaus Bakhsh have killed my son Abdul Latif today.
In fact it has come on record that the First Informant alongwith his deceased son and others had been transplanting paddy seedlings for three days.
It seems that translation of F.I.R. from Urdu to English has created doubt. The Urdu version is reproduced as under:‑‑
The sentence comes to an end here. Hereafter, it starts again and hence in the last but one sentence it concludes as under:‑‑
Secondly, as is indicated from the judgment of the trial Court that this point was not raised before the learned Sessions Judge. The defence counsel for that matter did not put any question with this effect either to P.W.1 or P.W.5, the S.H.O., who deposed before the trial Court that the case was registered on that day on the report of Murid Khan i.e. 10‑8‑1982. The counsel has not challenged this version in cross‑examination. Furthermore, the date of despatch is not of much importance. Although the date appears as 12‑8‑1982 but it is the date of receipt, and hence it cannot be said that it was despatched on the said date.
This argument therefore, is devoid of any force, hence repelled. It leads us to the remaining contention of the learned counsel for the appellant i.e. preliminary investigations was conducted by the S.H.O. before filing of the F.I.R. This point was agitated before the trial Judge as is indicated in para. 13 of his judgment. The only basis for such argument before the trial Judge was that since P.W.1 Murid Khan in his cross -examination stated that his statement was recorded by the police at the place of occurrence.
No question was suggested that F.I.R. was registered at the place of occurrence. It is pertinent to note that P.W.5, Inspector Jalal Din, categorically stated that he registered the F.I.R. which bears his signatures and no single question was put by the defence to suggest that F.I.R. was lodged not in the police station, but on place of occurrence.
We are, therefore, inclined to hold that the defence cannot take benefit of the reply to a general question of P.W. 1 who is a villageman and cannot be expected to give mathematical and accurate idea of time. His answer in affirmative that his statement was recorded at the place of occurrence, in no way means that F.I.R. was recorded at the place of occurrence. There is no evidence on record on the basis of which inference can be safely drawn that the S.H.O. conducted preliminary investigations before registering the F.I.R.
Such an inference cannot be drawn on presumptions which are not substantiated from the material on record. The occurrence took place at 5‑ 30 p.m. It has come on record that the First Informant went to the nearby village in order to fetch a mare from one Bugti to reach the police station. It is on record that the said mare was left on the Rice Husking Mills. Therefore, delay in lodging the report has been reasonably explained by the First Informant.
Last contention in this respect was that the contents of the F.I.R. regarding motive were false. We would like to deal with this point when we dilate upon the question of motive.
The learned counsel invited our attention to the case of Aminullah v. The State, reported in P L D 1982 S C 429 and read the following observations from the said authority:‑‑
" .Another circumstance that requires consideration in this behalf is fact admitted by the Investigating Officer that the F.I.R. in the case was the only report of crime registered at the police station on that day, so that report could be recorded at any point of time with impunity embodying the suitable time and hour on that date. The Court ought to have viewed the investigation with greater caution and scrutiny due to unexplained delay that occurred .particularly as to the time of occurrence .'
The fact of the case in hand are quite distinguishable. The report was lodged at 8‑30 p.m. Occurrence took place at 5‑30 p.m. in the fields which was about 10 miles away from the police station. Admittedly there were no other means of transport. The First Informant and remaining two eye‑witnesses took the dead body from the field placed it nearby on a cot. The cot was brought from the nearby village. He then went to fetch the mare of a Bugti, and rode on it to go to the police station. The mare was left at the Rice Husking Mills. Time spent on all this naturally would cover the delay.
It was next contended by the learned counsel that although it is not necessary to establish a motive but once the motive is set up by the prosecution, the prosecution is under legal obligation to prove the same
It was also urged that since some improvements were made by P.W.1 regarding motive in the statement before the trial Judge in juxtaposition to F.I.R. hence, the statement may not be given much credence. The basis of this argument was that in F.I.R. the factum of mere disappearance of Wali Muhammad (brother of accused) in a previous incident was mentioned, but during the trial the P.W.1 also added that lie was suspected to have been killed' by Murid Khan etc. From the perusal of F.I.R. we found that said P.W. has not only mentioned the fact of disappearance but also of alleged murder of Wali Muhammad. We were unable to find any improvement made by the said P.W.
It was next contended that in F.I.R. the fact of murder of Abdul Fateh and Mst. Zadi by Wali Muhammad was deliberately suppressed hence, the witness to the extent of motive should not be believed. We find hardly any force in this contention. It is neither a rule of prudence nor requirement of law that each and every fact regarding motive must be fully explained in F.I.R. The fact of murder and disappearance of Wali Muhammad was mentioned by the P.W.1. The details of previous occurrences were given in reply to the question in cross‑examination. We find no fault on this score, too. The learned counsel contended that the prosecution failed to prove the motive set up by it, hence, the Court may be on its guards to assess the credibility of the prosecution evidence.
The learned counsel laid much emphasis by contending that in fact there was no motive to kill the deceased. P.W. 1 Murid Khan the father of the deceased set up the motive that one Wali Muhammad brother of accused Ali Sher was allegedly missing and the accused persons suspected him to have been killed by Murid Khan and others. On this suspicion, the accused persons committed the murder of Abdul Latif. It was argued that one Abdul Fateh the cousin of Murid Khan P.W.1, and one Mst. Zadi were previously killed by Walt Muhammad, brother of accused Ali Sher. In that case P.W.1 Murid Khan, Abdul Qadir and one Adullah were charged for the said murder. Since the murder was compounded on the Holy Quran, the complainant party in the said case did not depose against Murid Khan and others as a result of which Murid Khan and others were acquitted. It was thus, contended that the enmity between the parties came to an end in view of the compromise between the parties and therefore, there remained no motive for murder of Abdul Latif.
The learned counsel for the appellant invited our attention to the following authorities:‑‑
Case of Hakim Ali and four others v. State 1971 S C M R 432. It was observed in the said case as under:‑‑
"It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence:"
2. The case of Muhammad Sadiq v. Muhammad Sarwar and 2 others as reported in 1979 S C M R 214. In this case their Lordships observed:‑‑
"The fact that the prosecution has failed to prove the motive of the crime is only a circumstance which reacts against its case and as prosecution put forward in the instant case, a motive for the crime which it totally failed to prove, it would only mean that the ocular evidence required to be scrutinised with great caution. And I venture to think that the High Court too might have taken different view of the ocular evidence it its attention had been drawn to this aspect of the case."
3. The case of Abdullah v. State 1985 P Cr. L J 1938 in which it was observed:‑‑
"Adverting to the question of motive it may be stated that in the F.I.R. it has been stated that the appellant and his brothers had raised dispute about the land as they wanted to purchase it but the same was settled by the Nekmard but P.W. 1 Muhammad Siddique in his testimony before the Sessions Court has stated that dispute was not settled. The alleged dispute had taken place about one year back prior to the incident. Nothing has been brought on record as to the reasons which prompted the appellant to commit murder after about a year"
It was argued that if at all, had this been the motive, P.W.1 Murid Khan should have been killed since he was involved in murder of Wali Muhammad and he was also available at the spot. But instead, there was no motive to kill Abdul Latif. The following authority was relied upon:‑‑
The case of Maqbul Ahmed Tamimi v. Ziarat Shafi as reported in 1985 P Cr. L J 2881 the said authority, the relevant observations regarding motive were as follows:‑‑
"Accused allegedly having motive against brothers of deceased but obviously having no motive against deceased----------There being no reason for accused to commit murder of deceased while his real enemies were still available for revenge if accused wanted any. Evidence of motive disbelieved in circumstances."
There is quite some force in the contention. Since the murder of Wall Muhammad was admittedly compromised on the Holy Quran, there remained no motive for accused Ali Slier to have killed Abdul Latif. This fact was admitted by P.W.1 Murid Khan in his cross‑examination and he was one of the accused persons in the said case. We are, therefore, of the opinion that the evidence to the extent of motive has not been satisfactorily established.
As far as the recoveries are concerned, the trial Judge has not placed reliance on the same while passing order of conviction and we think rightly so because the reasons given are quite justifiable.
Adverting now to the ocular evidence, it may be pointed out that out of three eye‑witnesses one (Abdul Qadir) had been killed as deposed by P.W.2. Hence, prosecution examined only two witnesses. The learned counsel submitted that it was an unwitnesed scene and the P.Ws, have implicated the accused persons due to long existing enmity. We may summarise the points urged in this regard as follows:‑‑
(a) The two eye‑witnesses were not present on the scene of occurrence.
(b) The eye‑witnesses are inimical to the accused and falsely implicated them.
(c) Being close relations of the deceased they are interested witnesses.
(d) They are chance witnesses.
Elaborating the first point, it was contended that there is a material contradiction in the statement of the aforesaid two eye‑witnesses. P.W. 1 deposed that Ali Nawaz was not present on the scene of occurrence, whereas P.W. 2 stated that he was present. We have perused the depositions of the two eye‑witnesses carefully and minutely. In examination‑in-chief, the name of Ali Nawaz was not mentioned by P.W. 1 but in cross examination by the counsel of accused Ali Sher the said P.W. admitted that Ali Nawaz was not present and had gone to Jaffarabad to hire a bullock, But he had gone at about 3‑30 p.m. He further stated that Ali Nawaz had come to the fields after taking meals. 1n the same cross‑examination he further stated that Ali Nawaz was already present there when he returned alongwith police i.e. after lodging of report. In cross‑examination of Mr Mangi, the counsel for the accused Bahadur and Ghaus Bakhsh, P.W.1 reiterated again that when the police reached, there was no one except Mir Hassan, Abdul Qadir and Ali Nawaz. P.W. 2 Mir Hassan admitted his presence. The presence of Ali Nawaz is thus, admitted by both the witnesses. After a careful examination, it may be found that there was no contradiction at all. Mir Hassan states that they had gone for planting paddy seedlings at about 12‑00 noon. Ali Nawaz was present. This fact is not contradicted by the P.W. 1. He states that Ali Nawaz went for bullock at about 3‑30 p.m. He was present in the files before 3‑30 p.m. but not when the occurrence took place.
It was then contended that in sketch of Wardat (Exh. P.G.) the points where the eye‑witnesses were standing were not pointed out although the point from where the accused Ali Sher fired at the deceased is shown and also the point where the deceased was planting seedlings was indicated Thus, it was urged that there arses a reasonable presumption that both the eye‑witnesses were not present. This point is devoid of force, because this at the most, may be an omission on the part of investigating Officer. However, it will not invalidate the testimony of eye‑witnesses who are otherwise reliable. We may find support from the case of Nauroz v. State as reported in 1986 P Cr. L J 3019. The two P.Ws. have given full account of the incident. They have not been impeached in cross‑examination on any material point. The fact that they saw deceased was planting paddy seedlings is further proved from the report of Chemical Analyser (Exh P.H.), which was not challenged by the defence.
This leads us to the next submission. The learned counsel contended that eye‑witnesses were inimical towards the accused due to long‑standing enmity, therefore, they falsely implicated the accused persons. The said proposition of enmity was already dilated upon by us while disposing of the point of motive. It is an admitted position that the matter was compromised on the Holy Quran. Not only that but as a consequence whereof nobody deposed against P.W.1 Murid Khan and others who ultimately were acquitted in the murder case of Wali Muhammad. Had this been a bone of contention why then Murid Khan and others were spared by Ali Sher and others when they were involved in murder of his brother. This was set at rest once and for all. Besides this there seems to be no other enmity. At least the record is silent to indicate any other hostility. Therefore, we find this argument as devoid of force. However, it is an admitted position that P.W.1 is the father of deceased and P.W. 2 is also near relative of the deceased. Mere relationship cannot be held a ground to discredit a witness if otherwise his deposition is found confidence-inspiring particularly when inimical attitude towards the accused persons is found missing. Another factor in this respect is that the parties are collateral. Accused Ali Sher is also nephew of P.W. 1. There is no cause on record to establish that P.Ws. falsely implicated the accused persons out of malice.
At this stage the learned counsel for the appellant also submitted that non‑production of Ali Nawaz may be taken into consideration and inference may be drawn in favour of the defence. In fact, as observed hereinabove that Ali Nawaz was present in planting paddy seedlings but it was not the case of prosecution that Ali Nawaz was present at the time of occurrence. The deposition of Mir Hassan to the extent that he was present at about 12‑00 noon has been explained by P.W. 1 that he left for Jaffarabad and returned when occurrence had already taken place. No question was put to him or to Mir Hassan by the defence with the effect whether Ali Nawaz witnesses the incident or not.
Non‑production of Ali Nawaz, therefore, in our considered view will not prejudice the case of prosecution in any manner. The learned counsel for the appellant referred to the case of Mst. Muhammadia v. Zari Bacha P L D 1982 Pesh. 85. Mst. Bilqis who allegedly witnessed the incident was not produced by the prosecution. But it has got no bearing on the fact of this case because here Ali Nawaz did not witness the occurrence.
In the case of Sher Dil alias Sher Gul v. State 1973 P Cr. L J 812 it was observed that three out of four eye‑witnesses were closely related to the deceased and were inimical to the accused and it had come on record that different animosities existed.
In the instant case the sole hostility was murder of Wali Muhammad which was compromised on Holy Quran and set at rest. No other enmity existed between the parties.
The case of Rahim Ali and three others v. State 1976 P Cr. L J 17 was referred wherein it was observed that to sustain conviction on capital charge, the ocular testimony to carry conviction must come from unimpeachable sources.
Eye‑witnesses in the said case were admittedly inimical and there was no corroboration from any source. But here P.W. Mir Hassan was not at all involved in any of the previous murders who corroborated the prosecution version. We, therefore, conclude that non‑production of Ali Nawaz would hardly cast any unfavourable circumstance to the prosecution.
Adverting to the point of absconsion it was vehemently urged that since no serious efforts were made for the arrest of the accused Ali Sher by the police: hence he could not be arrested. The prosecution did not suggest any question to the accused Ali Sher that he absconded after commission of offence. It was further argued that Ali Sher was not resident of Deb Noorpur but of Deh Faizabad and the warrants of his arrest (page 14 of record) were addressed on Deh Noorpur
Virtually, the above‑said submission have Ono relevancy because accused Ali Sher took the plea of alibi. In his statement under section 342, Cr.P.C. as well as in his statement on oath he stated that he had migrated to Turbat after the murder of his brother Wali Muhammad. But he did not produce a single witness in his defence. The statement of Irshad indicates that all efforts were made to find and arrest accused Ali Sher but he was not available since he had absconded. He does not deny his arrest from Turbat. He also states that he was living all alone. There is no mention that he had any business to do at Turbat. His statement, therefore, is neither convincing nor confidence‑inspiring. The plea of alibi should be strictly proved, if taken as a defence. Here in this case, this plea is taken without leading a single witness. It is now almost an established principle of criminal jurisprudence that plea of alibi, if taken as a defence requires strict and positive proof in order to brush aside the incriminating material as adduced by the prosecution.
Regarding the submission that the witnesses were chance witnesses it is observed that they have fully well‑explained their presence at the scene of occurrence. It is not unusual in this part of the country that the collaterals do assist each other on occasion of cultivation. Particularly the planting of paddy seedlings which is otherwise a laborious job. The witnesses have established their presence on the scene of occurrence without any contradiction. Even otherwise the cumulative effect of the deposition reveals that they were present, otherwise it would not have been possible for the first informant to have informed the police about the incident in such a short period in an area where there is no means of transport except horse etc. Once it is established that the witnesses were present then the deposition cannot be held unreliable merely because they usually were not residents of that village. Furthermore, the report of the Chemical Analyser corroborates the version that the deceased was working in the fields because paddy seedlings were found stained with human blood.
Having taken into consideration, the factual and legal points discussed hereinabove. we are convinced that the testimony of eye witnesses is not only unimpeachable but confidence‑inspiring. P.W.1 Murid Klan and P.W.2 Mir Hassan fully corroborated prosecution version. The prosecution version regarding the place and manner of occurrence finds supports from other evidence. P.W.5 Jalal Din, the Investigating Officer corroborated the prosecution version in respect of time and place of occurrence. P.W.8 Dr. Illahi Bakhsh also corroborates the description of prosecution version. According to him there was only one entrance wound on the dead body of deceased, caused by fire‑arm. There was charring and blackening, thus, further substantiating prosecution version that deceased was fired at from a distance of about five paces. The Chemical Examiner report (Exh.P.H.) also is a corroborative piece of evidence giving a positive finding of human blood on paddy seedlings which was never challenged. The absconsion of the accused Ali Sher after commission of offence is a further circumstantial piece of evidence.
The cumulative effect of the prosecution evidence leaves no room for doubt that Ali Sher committed the murder of the deceased.
The learned counsel for the appellant took an alternative plea that the extreme penalty of death awarded to accused Ali Sher is not justifiable in the circumstances of this case. According to the counsel when the motive is set up but not proved, the death penalty is usually not awarded. He invited our attention to the following authorities in this respect:‑
(1) Sarfraz and other v. State as reported in 1985 SCMR 501, relevant observations on page 503 are hereby reproduced:‑
"As for the question of sentence we consider that the High Court was justified in imposing the lesser sentence. It is an admitted position that there was no immediate motive for the commission of the crime and the motive alleged by the prosecution in the F.I.R was, too, remote to be accepted and was rightly rejected by the High Court."
(2) Ali Hussain and others v. Mukhtar and 2 others as reported in 1983 SCMR 806 in which their Lordships of Supreme Court on page 811 observed as under:‑
"Motive though not a sine qua non for bringing the offence of murder home to the accused, is relevant and important on the question of sentence. In the instant case the motive alleged by the prosecution remains obscure and it cannot be positively maintained that the deceased was stabbed just for refusing to stop seeing Ch. Barkatullah, M.N.A. It seems that there was something else which tad actually enraged the accused to attack the deceased. Thus, for the safe dispensation of justice we consider that life imprisonment in the case in hand, would meet the ends of justice."
(3) The case of Muzamil Din and others v. Noor Hussain and others 1985 S C M R 495 in which their Lordships of the Supreme Court observed that:‑
"Immediate cause for attack being shrouded in mystery. Accused held, rightly for benefit of lesser sentence:'
(4) In the same authority the case of Mutiur Rehman and others v. State was also referred to in which it was held that:‑
"Motive for the offence was not satisfactorily established but was in fact shrouded in mystery hence imposition of lesser sentence was held proper and reduction in sentence of death to life imprisonment justified in the circumstances of the case:"
(5) In the case of Muhammad Iqbal and others v. State, reported in 1984 S C M R 1184, it was observed that:‑
"Motive set up by the prosecution was not proved and the real cause of occurrence remained shrouded in mystery, therefore, conviction of the accused persons under section 302/34, P.P.C. maintained but death sentence was altered to imprisonment for life.."
The ratio decidendi of the aforesaid authorities of the Supreme Court of Pakistan is that when the motive for the offence is either not proved or not satisfactorily established then it is a circumstance where the extreme penalty of death is usually commuted into lesser punishment of life imprisonment.
Since we have already held in this case that the prosecution did not prove the motive and the same being shrouded in mystery we find a lot of substance in the argument of the learned counsel for the appellant that the death sentence of accused Ali Sher be reduced. We, therefore, while maintaining the conviction of the accused Ali Sher under section 302, P.P.C. reduce the sentence to imprisonment for life.
Regarding the remaining two accused persons namely Ghaus Bakhsh and Bahadur, the main contention of the learned counsel for the appellant was firstly that the charge framed against the aforesaid two accused persons was vague for the reasons that the charge was framed when accused Ali Sher was not arrested who allegedly fired at the deceased. It was further contended that the charge that the two accused persons acted in furtherance of common intention was not put to the accused in specific and clear terms, thus causing prejudice in defence.
It was further submitted that on the basis of evidence on record it cannot be deduced that the above‑said two accused persons acted alongwith main accused in furtherance of common intention of committing murder of the deceased Abdul Latif. The evidence which has come on record is only to the extent that after when the deceased was killed the aforesaid two accused persons i.e. Ghaus Bakhsh and Bahadur had threatened the complainant party not to come near them otherwise they would also be killed. Another important circumstance according to the learned counsel for the appellant is to consider the effect of evidence of Mir Hassan who had omitted to include accused Ghaus Bakhsh and this omission is recorded in the cross‑examination.
In order to appreciate the aforesaid contentions it would be profitable to reproduce the prosecution evidence against the two accused persons Bahadur and Ghaus Bakhsh. P.W.1 stated, that accused Ali Sher had a single barrel gun. Accused Bahadur had also a single barrel gun. The accused Ghaus Bakhsh had a hatchet. Bahadur and Ghaus Bakhsh threatened us not to come near them otherwise we would also be killed.
Similarly P.W.2 Mir Hassan stated, accused Ali Sher, Bahadur and Ghaus Bakhsh came there. Accused Ali Sher and Bahadur had one barrel gun while accused Ghaus Bakhsh had a hatchet ....accused Bahadur and Ghaus Bakhsh had threatened us not to come near them.'
There are only two circumstances which crop up from this evidence. Firstly that the said two accused persons accompanied the main culprit Ali Sher on the scene of occurrence and were armed. Secondly they threatened the P.Ws. not to go near them otherwise they would be killed.
Both the accused persons pleaded not guilty. The recovery of hatchet from accused Ghaus Bakhsh was not relied upon by the trial Judge for the reasons that the said accused was arrested on 31‑8‑1982 and the hatchet was recovered allegedly on 14‑9‑1982 i.e. the last day of police remand. This inordinate delay in recovery was not explained by the prosecution. The learned trial Judge also did not believe the Mashir. We find the reasons to be cogent; hence evidence to the extent of recovery cannot be taken into consideration. There is no recovery from the accused Bahadur. The only evidence remain against these two accused persons, therefore, is their presence on the scene of occurrence alongwith accused Ali Sher and alleged threat by them that the P.Ws. should not come near them otherwise they would be killed. It is not the case of prosecution that any overt act was done by these two accused persons when accused Ali Sher fired and killed Abdul Latif. It is not unusual in this part of the country that people carry arms with them when they go outside. The only incriminating piece of evidence seems to be the alleged threat to the P.Ws. not to go near them. It is conspicuous to note that none of the prosecution witnesses deposed before the trial Judge that the said two witnesses threatened them that they would be killed by them' if they came near to them. The only deposition is that the P.Ws. would be killed if they went near to them. After killing Abdul Latif naturally if the P.Ws. would have resisted, they would have been killed by Ali Sher. Taking the statement of the two accused persons in this context, it can easily be inferred that these two accused persons apprehended that the P.Ws. if resisted would be killed by Ali Sher. It is neither in the F.I.R. nor in the statements that these two accused persons threatened the P.Ws. that they' would kill them if they came near. They only stated that they would be killed, meaning thereby that Ali Sher who killed Abdul Latif might kill them.
Mere presence of persons on the scene of occurrence would not necessarily mean that they acted in furtherance of common intention in commission of the offence. Some sort of pre‑arranged plan must be proved that the criminal act was done in concert pursuant to the pre‑arranged plan. We are unable to gather or safely infer from the circumstances of this case that any such pre‑arranged plan existed. We are mindful of the fact that one cannot always expect direct evidence, to be forthcoming on a matter of this nature but the cumulative effect of the entire circumstances are to be seen and assessed in order to reach the conclusion that intention was there because intention being a mental condition can be gathered from the circumstances of each case. The learned counsel relied on the following; authority:‑
1969 S C M R 454 in which it was observed as under.‑
"The Sessions Judge had applied section 34 to the case and in order to support the conviction under that section‑ mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention."
We find that no overt act was attributed to the said accused persons by the prosecution that they acted in furtherance of common intention. As discussed hereinabove the only evidence which has come on record in this regard is to the effect that these two accused persons threatened the P.Ws. (after when deceased Abdul Latif was shot and killed by Ali Sher) that they should not come near them otherwise they would be killed. Even if this is to be taken on the face of it, it cannot be concluded that this threat was given prior to or during the commission of offence. It is only a circumstance which was done when offence was committed. It can, therefore, not be safely concluded. that the accused persons acted in furtherance of common intention with Ali Sher in the commission of murder of the deceased. We are, therefore, inclined to hold that the learned trial Court has not correctly applied the provisions of section 34 in this case. We are further of the view that the prosecution failed to establish the charge that the two accused persons acted in furtherance of common intention with the accused Ali Sher.
The remaining contention of the counsel on this point, therefore, do not require adjudication.
From the above discussion we are inclined to partially accept this appeal. We maintain the conviction of accused Ali Sher but reduce the sentence from death to imprisonment for life. We also give benefit of section 382‑B, Cr.P.C. to accused Ali Sher. The life imprisonment shall be counted from the date of his arrest. However, we acquit accused Ghaus Bakhsh and Bahadur from the charge. Ghaus Bakhsh and Bahadur, therefore, shall be released forthwith if not required in any other case.
M.B.A./274/Q Appeal partly accepted.
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