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Criminal Appeal No. 516 and Murder Reference No.137 of 1982, Criminal Revision No. 498 of 1983, decided on 27th April, 1987.

---S.302/34--First information report, a genuine document, lodged promptly wherein names of accused, weapons carried by them and names of eye-witnesses mentioned--Eye-witnesses having no enmity with accused and giving plausible cause of their presence near spot at time of occurrence--Witnesses successfully facing test of cross-examination--No major contradiction, discrepancy or dishonest improvement found in evidence of such witnesses--Statement made by witnesses in consonance with probabilities and materially fitting in with rest of evidence and attending circumstances--No serious conflict existing between statements made by eye-witnesses and medical evidence--Accused closely related to them and occurrence having taken place in light of day and it was not difficult for them to identify accused--Possibility of substitution of accused for real culprit not existing--Number of injuries found on person of deceased commensuration with number of assailants named by eye-witnesses- Testimony of prosecution witnesses wholly reliable and finding further corroboration by motive and promptly lodged first information report-- Occurrence, a premeditated murder and kind of weapons used and location of injuries indicating that accused had no intention other than that of killing deceased--Conviction upheld in circumstances.

---S.302/34--Sentence--Accused killing his real father and not deserving any leniency--No mitigating or extenuating circumstances existing in favour of accused to award lesser penalty-Sentence of death maintained.

---S.302/34--Sentence--Co-accused son-in-law of main accused and might have acted under latter's influence--Sentence of death aitered to imprisonment for life as a matter of abundant caution.- -[Sentence].

---S.302/34--Appreciation of evidence--Witness claiming to have seen accused firing at deceased--Neither prosecution witnesses supporting her statement nor it was mentioned in first information report that she had seen occurrence--Statement of said witness excluded from consideration in interest of safe administration of justice.--[ Evidence]

Syed Ehsan Qadir Shah and Syed Ehtesham Qadir Shah for Appellants.

Altaf Muhammad Khan for the State.

Inayatullah Cheema for the Complainant.

Dates of hearing: 26th and 27th April, 1987.

-This Criminal Appeal No. 516/82, connected Murder Reference No. 137/82 and Criminal Revision No. 498/83 for enhancement of fine and compensation arise from the judgment of learned Sessions Judge, Mianwali, whereby he on 11-8-1982 while acquitting Mehr Khan (48) and Abdul Sattar (23) of the charge under section 382, P.P.C., convicted them under section 302/34, P.P. C. for the murder of Manzoor Khan (70) and sentenced them to death and a fine of Rs. 10,000 or in default thereof 2 years' R.I. with the direction that the fine if recovered be paid to the legal heirs of the deceased. We propose to dispose of them through single judgment.

c 2. The occurrence took place on 17-9-1978 at 9/10 a.m. in the fields of Manzoor Khan deceased in the area of village Musa Khel at a distance of 3 miles from P.S. Musa Khel. The F.I.R is statement Exh. P.A. of Fateh Khan P.W.4 son of the deceased which was recorded by Ali Ahmad, A.S.I. P.W.8 on the same day at 11-00 a.m. at a distance of 80 and 100 Karams from P.S. Musa Khel. The formal F.I.R. Exh. PA/1 was drawn up by Rafi Ullah Khan, Muharrir Head Constable P.W.1 at 12-30 p.m., on the same day. Manzoor Khan deceased was the real father of Mehr Khan appellant.

3. The motive as alleged by the prosecution was that Mehr Khan appellant gave hand of his daughter Mst. Nizam Khatoon to Abdul Sattar co-appellant 8/9 months before the occurrence against the wishes of the deceased. Thereafter, the deceased, transferred 200 Kanals of his land to his other sons namely Fateh Khan P.W.4, Sher Khan and Hamid Ullah Khan to the exclusion of Mehr Khan appellant vide registered gift deed Exh. P.E-. hence this occurrence.

4. As for the main occurrence, it has been alleged that on the eventful day Manzoor Khan deceased had gone to have a round of his fields to check Wattar for ploughing. Fateh Khan P.W.4 and his son Ahmad Nawaz P.W.6 had also gone to their lands to check Wattar for ploughing. Fateh Muhammad P.W.4 and Ahmad Nawaz P.W.6 were returning to their home in Wandha Gulani Khelan. When they reached near the minor, they saw Manzoor Khan deceased present in his land. Mehr Khan and Abdul Sattar armed with guns arrived there and shouted at Manzoor Khan that they had come to teach him a lesson for transferring the land to his other sons and depriving Mehr Khan of the same. Abdul Sattar appellant fired shot hitting the deceased on his face who fell down on the ground. Mehr Khan appellant then fired hitting the deceased at his back. Mehr Khan appellant fired another shot hitting the deceased on his left arm. Fateh Khan P.W.4 and Ahmad Nawaz P.W.6 hit themselves in a nearby Musa Khel minor out of fear. The appellants then ran away towards their house while firing in the air. Thereafter, Fateh Khan P.W.4 and Ahmad Nawaz P.W.6 went to the place of occurrence and found that Manzoor Khan had succumbed to the injuries. In the meantime Mst. Inayat Khatoon P.W.7, wife of Ahmad Nawaz P.W.6 reached the spot. She told them that she was bringing licensed gun of Fateh Khan P.W.4 which was snatched away from her by the two appellants.

5. On 18-9-1978 Dr. Muhammad Akram Khan Niaz, P.W.9 conducted post-mortem examination on the dead body of Manzoor Khan. He found following injuries:

(1) (a) A fire-arm wound of entry 2" x 1" on middle of forehead, taking away some brain matter, skin of face and nose. Whole upper and lower jaw were smashed, making exit 3 " x 2" on left side, lower jaw.

(b) Re-entry 3/4" x 3/4" below left clavicle with exit 3/4" x 3/4" on back of left arm, at upper one-third.

(2) Enlongated fire-arm wound 31" x 12" on both sides of mid-line 7' below 1st * thoracic vertebra (two metallic pieces of bullets recovered at left side axilla).

(3) A fire-arm wound of entry 3/0" " on the back side of left forearm, 2" from wrist, with wound of exit 1" x 3/4" on front of forearm 1" from wrist."

In his opinion, the death was due to shock and haemorrhage caused by injuries No. 1 & 2, which were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was 5 to 15 minutes while between death and post-mortem was 20 to 22 hours. In cross-examination, the doctor stated that the left side of the face had been smashed due to injury No. l and that the possibility of injury No.l(b) as a result of a separate shot could not be ruled out. The witness further stated that the contents of the stomach showed that there was possibility of the deceased having taken meals 3 to 6 hours before the occurrence.

6. Mehr Khan appellant was arrested on 7-10-1978 by Ali Ahmad A . S . I . , P. W . 8. At the time of his arrest, he was carrying rifle Exh.P.W.2/1 and five live bullets Exh. P.W.2/1 to 5, which were taken into possession vide memo. Exh. P.J. attested by Muhammad Khan Constable P.W.2 and Ahmad Constable (not produced). On 21-10-1978. Mehr Khan appellant led to the recovery of licensed gun Exh.P.3 of Fateh Khan P.W.4 and a bag containing five cartridges Exh. P.6/1 to 5, which were taken into possession vide memo Exh. P.C. attested by Fateh Khan P.W.4 and Ahmad Nawaz P.W.6. On 28-10-1978 Ali Ahmad, A.S.I. P.W.8 arrested'Abdul Sattar appellant. On 5-11-1978 Abdul Sattar appellant led to the recovery of licensed rifle Exh. P.4 and 5 live bullets Exh. P.5/1 to 5 from his house which were taken into possession vide memo Exh. P.H. attested by Fateh Khan P.W.4 and Nemat Ullah (not produced). The recovery memoranda were prepared and signed by Ali Ahmad S.I. P.W.1. It may be noted that all the incriminating recoveries from the appellants have been disbelieved in para No.20 of the judgment of the trial Court.

7. To prove its case, prosecution produced 9 witnesses. Fateh Khan P.W.4, Ahmad Nawaz P.W.6 and Mst. Inayat Khatoon P.W.7 have given fhe ocular account of the occurrence. They claim to have seen the appellants firing shots with guns resulting in the death of the deceased. Mst. Inayat Khatoon P.W.7 stated that after seeing the appellant firing at the deceased, she took licensed gun of her husband Ahmad Nawaz P.W.6 from the house and was bringing the same to the spot which was snatched away from her by the appellants on the way to the place of occurrence. Fateh Khan P.W.4 has also supported alleged motive for the commission of crime. Muhammad Khan P.W.2, Fateh Khan P.W.4, Ahmad Nawaz P.W.6 and Ali Ahmad S.I. P.W.8, supported the recoveries of rifle Exh. P.W.2/1. Gun Exh. P.3, bullets P.W.2/1 to 5 cartridges Exh. P.16 to 5 from Mehr Khan appellant and rifle Exh. P.4 alongwith 5 bullets Exh.P.5/1 to 5 from Abdul Sattar appellant. Dr. Muhammad Akram Khan Niazi, P.W.9 has proved the post-mortem examination report. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence no witness was produced.

9. Learned counsel for the appellants contended that the F.I.R. was in fact lodged after "preliminary investigation nd the despatch of the dead body; that Abdul Sattar appellant had no motive to commit crime rather the complainant had a motive to involve him falsely in the case; that the deceased was in fact siding with Mehr Khan appellant so the latter had no motive to kill the former; that the eye-witnesses are not reliable; that their statements are not in conformity with the medical evidence; that it was not possible for the eye-witnesses to identify the assailants from a distance of 52 Karams; that the evidence of the recovery of gun Exh. P.3 resulting in acquittal of the appellants under section 382, P.P.C. shows that the eye-witnesses have made false statement; that the eye-witnesses although related to the appellants yet had become inimical because of the family affair; and that in fact it was an unseen occurrence. In the alternative, the learned counsel requested for lesser penalty to Abdul Sattar appellant on the ground that he had acted under the influence of his co-accused who was his father-in-law. Conversely, the learned counsel for the state assisted by the learned counsel for the complainant have supported the judgment of the trial Court.

10. We have considered the submissions made by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellants under section 342, Cr.P.C. and the surrounding circumstances, with utmost care. We have not been able to persuade ourselves to agree with the learned counsel for the appellants. Having appreciated the evidence in accordance with the guiding principles laid down by the Superior Courts for the appreciation of evidence in such like cases we find that it is a case of promptly lodged F.I.R. wherein the names of the accused, the weapons carried by them, the manner of the occurrence, the parts played by them and the names of eye-witnesses are mentioned. The occurrence took place at 9/10 a.m. and the F.I.R. was recorded at 10-30 a.m. and completed at 11-00 a.m. on the same day as stated by Ali Ahmad A.S.I. P.W.8. The mere fact that the F .I . R . Exh. P.A. i. e. the statement of Fateh Khan P.W.4 on the basis of which formal F.I.R. Exh. P.A/1 was drawn up, was recorded at a distance of 80/100 Karams from the police station does not detract from its, correctness. Ali Ahmad A.S.I. P.W. 8 has given a cogent explanation for not recording., the same at A the police station. He stated that under the rules he was, bound to record the information at the place where he received it, It may be noted that it was not even suggested Ali Ahmad S.I. 'P.W.8 that the F.I.R: was recorded after preliminary investigation or after despatch of the dead body. It- seems.to us that the F.I.R. Exh. P.A. is a genuine document which was prepared at the time and place as it purports. So, the F.I.R. can, safely be used to corroborate the statement to Fateh Khan complainant.

11. Adverting to the most crucial piece of evidence, i.e. ocular testimony, we find that Mst. Inayat Khatoon has also claimed to have seen the appellants firing at the deceased. The other two P.Ws. namely Fateh Khan P.W.4 and Ahmad Nawaz P.W.6 have not supported this part of her statement. Although the F.I.R. was lodged after she had met the complainant and narrated the incident of snatching away of gun by the appellants from her it has not been stated in the F.I.R. that she had also seen the occurrence, or had told the complainant that she had seen the appellants firing at the deceased. In these circumstances, we feel that it would be in accordance with the rule of safe administration of justice that this:-part of her statement .w should be disbelieved and excluded from consideration. As for Fateh Khan P.W.4 and Ahmad Nawaz P.W.6, we find that their names are mentioned in the promptly lodged F.I.R. Fateh Khan P.W.4 is real brother of Mehr Khan appellant. Muhammad Nawaz P.W.6 is real nephew of Fateh Khan P.W.4. Abdul Sattar appellant is also related to them. Fateh Khan P.W.4 has stated that Abdul Sattar appellant is grand-son of his first cousin Amin Khan. They had no enmity with the appellants. There is nothing on record to show that they were annoyed with the appellants over the marriage of Mst. Nizam Khatoon with Abdul Sattar appellant or that they had any hand in depriving Mehr Khan appellant of the land. There is no evidence to the effect that they ever sided with their father, the deceased, against the appellants. The mere fact that the deceased had gifted away 200 Kanals of land to Fateh Khan P. W.4 and 2 others to the exclusion of Mehr Khan is not sufficient to draw inference of enmity or ill-will of the eye-witnesses with the appellants. It may be noted that no suggestion with regard to the existence of any party faction or rival groups in the family of deceased, was given to the eye-witnesses. The learned counsel has not been able to show any animus of the eye-witnesses with the appellants. In the peculiar circumstances of the case, the abstitution of the appellants more particularly of Mehr Khan appellant Nio.1, who is not only the real son of the deceased but also the real brother of the complainant in place of real culprits was not possible at all. The appellants have not been able to lay down any foundation for their substitution in place of the real murderers. The witnesses have successfully faced the test of cross-examination. The appellants being closely related to them and the occurrence having taken peace in the light of the day it was not difficult for them to identify the appellants even from much more distance. The witnesses have given plausible cause of their presence near the spot at the time of occurrence. Except for minor and immaterial discrepancies and contradictions, the learned counsel has not been able to point out any major contradiction/ discrepancy or dishonest improvement in their evidence. The statements made by them are in consonance with probabilities and materially fits in with the rest of the evidence and the attending circumstance. We do not see any serious conflict between the statements made by the eye-witnesses and the medical evidence. Omission on the part of the eye-witnesses to explain one or 2 injuries found on the person of the deceased in the F.I.R. and statements under section 161, Cr.P. C. does not detract their evidence at trial from correctness, more particularly when they had seen the occurrence from a distance of 52 Karams. This would rather show that the F.I.R. was honestly prepared before the post-mortem examination. The number of the injuries found on the person of the deceased commensurates with the number of the assailants named by them. In view of the motive alleged by the prosecution which stands supported by Fateh Khan and gift deed Exh. P.E., the appellants were the persons who were expected to have taken part in the occurrence. Despite lengthy cross--examination, the defence could not impeach the character and credit of P.Ws.4 & 6. The eminent jurists have classified the ocular testimony into three categories: -

(i) Wholly reliable.

(ii) Wholly unreliable.

(iii) Partly reliable and partly not reliable.

In the first category, conviction can safely be sustained on uncorroborated testimony. In the second category even strongest corroboration may not rehabilitate such evidence. In the third category, the rule of prudence would require independent corroboration. It seems to us that the testimony of Fateh Khan P.W.4 and Ahmad Nawaz P.W.6 falls within the first category and as such conviction can safely be upheld on their statements without looking for additional conformity evidence or circumstance. In case the rule of prudence still insists upon corroboration of their statements, the same is available in the shape of prompt F.I.R. and motive disclosed by the witnesses already believed by us. The submissions made by the learned counsel are without substance. It is a case of pre-meditated murder. The kind of weapons used and the location of the injuries indicate that the appellants had no intention other than that of killing the deceased. For all these reasons. We are convinced that the trial Court has rightly convicted the appellants under section 302/34, P.P.C.

12. This brings us to the question of sentence. We do not see any mitigating/ extenuating circumstance for awarding lesser penalty E to Mehr Khan appellant. He has killed his real father and does not deserve any leniency. As for Abdul Sattar we feel that he being son-in-law of Mehr Khan might have acted under his influence. So, as a matter of abundant caution, we alter his sentence of death to -imprisonment for life. The fine imposed by the trial Court on the appellants, the sentence in default thereof and directions for payment of the same to the legal heirs of the deceased are maintained.

For what has been said above, the appeal filed by Mehr Khan is dismissed in toto and the sentence of death awarded to him by the learned Sessions Judge is, hereby, confirmed, and while maintaining the conviction of Abdul Sattar under section 302/34, P.P.C., the sentence of death awarded to him by the learned Sessions Judge is altered to imprisonment for life. His sentence of death is not confirmed. The connected revision is dismissed.

M.Y.H./M-317/L Order accordingly.

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