1995 PLP 557 (MLD)

3. Immediately after the report Afsar Khan was sent to Civil Hospital, Takht Nasrati for medical treatment. On the same day at 9‑30 a.m. P.W. Dr. Asif Iqbal examined Afsar Khan (then alive) in the Hospital and found the following:- (1) Fire‑arm grazing wound over the anterior (flexor) surface of left fore arm about 2" below elbow‑joint lying obliquely, 2" x 1/2". (2) Fire‑arm entry wound on the back left side of chest about 2" to the left of the spinal column at the level of 11th thoracic vertebra, 1/4" 1/4". Bleeding freshly. (3) Fire‑arm exit wound lying at the 11th intercostal space on the mid‑axillary line on the left side of chest, 1/2" x 1/2". In his opinion injuries were caused within a duration of 1 to 3 hours. He then referred the patient to Liaquat Memorial Hospital, Kohat for further treatment. The same doctor on 8‑6‑1990 at 7‑30 a.m. conducted autopsy on the dead body of Afsar Khan and noticed on the internal examination the thoracic walls left pleaurae, left lung and blood vessels injured. Similarly, abdominal walls, peritoneum, diaphragm and spleen were found damaged. In the opinion of Dr. Asif Iqbal death had occurred on account of injuries caused to left lung and spleen followed by bleeding and shock. He has confirmed the correctness of his medico‑legal report Exh.P.W.9/1, the post‑mortem report Exh.P.W.9/2 and endorsements made by the doctor on the injury sheet Exh.P.W.9/3 and inquest report Exh.P W.9/4.

4. P.W. Amir Nawab Khan A.S.I. after writing the Murasila (Exh.PA/1) in the Police Post left for the spot and on arrival prepared the site‑plan Exh.PB correct with footnotes. He took into possession blood‑stained earth from Point No.1 vide memo. Exh.PC. At this place Afsar Khan was shot at and injured by accused Aslam Khan and Sher Afzal. Points Nos.2 and 3 denote the presence of P.Ws. Bego Khan and Mir Sahib Khan son of Ghazan. The absconding accused had fired from Point No.4 and accused Aslam Khan from Point No.5 which lie within a distance of 25 to 30 paces from the place of the deceased at the time of shooting. On the following day, i.e. 8‑6‑1990 Constable Rahim Badshah produced to the I.O. blood‑stained shirt and Banyan (Pl and P2) of the deceased which he had brought from the Hospital. Afsar Khan had died at Liaqat Memorial Hospital, Kohat. As the assailants had gone into hiding the I.O. obtained search warrants and proclamations as required under sections 204, 87, Cr.P.C. and got them served against the accused through D.F.C. Asmatullan. Initially, a challan under section 512, Cr.P.C. was sent to the Court against both the accused but on the arrest of accused Aslam Khan thereafter on 4‑6‑1992 a supplementary challan for his trial was submitted.

5. Both P.Ws. Bego Khan and Mir Sahib Khan who are mentioned as 'Ye‑witnesses of the incident .in the very report of the deceased have been examined before the trial Court. Bego Khan is a brother and Mir Sahib Khan uncle of Afsar Khan and this fact had been mentioned by the deceased in his report. Afsar Khan in the company of Bego Khan and Mir Sahib Khan was coming back home from Adda Shah Salim when accused Aslam Khan and Sher Afzal confronted him on the spot armed with `topaks'. The absconding accused at once fired a shot on Afsar Khan hitting him in the abdomen area followed by the fire‑shot of Aslam Khan with which the deceased received injury on his left hand. After the accused had decamped from the venue a pick‑up was arranged and Afsar Khan was immediately transported to Police Post Shah Salim where he himself lodged a report (Exh.PA/1) with P.W. Amir Nawah Khan A.S.I. The deceased was then taken to Civil Hospital, Takht Nasrati where P.W. Dr. Asif Iqbal examined him at 9‑30 a.m. and after giving necessary medical aid referred Afsar Khan to the Liaqat Memorial Hospital, Kohat for further treatment where he later on succumbed to his injuries. P.Ws. Bego Khan and Mir Sahib Khan both have been put to lengthy cross examination by the learned defence counsel during the course of recording their statements before the trial Court. But strangely enough, nothing has been asked to these witnesses as to the correctness of the report lodged by Afsar Khan in the Police Post and whether the deceased was in senses and could talk coherently at the time of making the report. Not a word on this aspect of the matter has been also put either to P.W. Amir Nawab Khan, A.S.I. who is author of this report or Doctor Asif Iqbal who immediately after that examined Afsar Khan in the Hospital at 9‑30 p.m. The learned defence Advocate on the contrary placed much stress on in-relevant queries. He was much perturbed on the alias name of P.W. Mir Sahib Khan who is also known by the nick name of Noor Sahib Khan. The apprehension of the learned counsel had been that Mir Sahib Khan and Noor Sahib Khan were two different persons. But he has ignored this important fact that the first name of Mir Sahib Khan with parentage is mentioned in the report of the deceased and the alias name has been later on disclosed to the I.O. by Mir Sahib Khan himself in his police statement recorded immediately after the report on the spot. Both P.Ws. Begs Khan and Mir Sahib Khan in their Court statements have corroborated the contents of the report Exh.PA/1 (which is now dying statement of Asfar Khan) on all material particulars and there is no deviation even to a minor discrepancy. They have unanimously told that the deceased on reaching the Police Post Shah Salim at 8‑00 p.m. lodged the report by himself in his own mouth words with A.S.I. Amir Nawab Khan and supported the happening of the occurrence in the manner mentioned in the report. Quite surprisingly nothing has been asked in the cross‑examination of these persons on the genuineness of the report or as to whether Afsar Khan was m senses and could talk coherently at that tim0e.

6. Similarly, P.W. Asmatullah F.C. has proved the service of the search warrant (Exh.P.W.l/1) under section 204, Cr.P.C. against the accused which he had returned alongwith a detailed report duly endorsed by Elders of the locality with .their signatures. He had searched for the accused in his own village and the surrounding areas. The same Constable later on conducted execution of the proclamation (copy EXh.P.W.1/2) under section 87, Cr.P.C. He is also a witness to the recovery of blood‑stained earth by the I.O. from the spot, vide memo. Exh.PC. P.W. Pir Nawaz Khan S.H.O. arrested the accused on 4‑9‑1992. He states that Aslam Khan had surrendered voluntarily in the Police Station at Takht Nasrati.

7. The event in this case, as stated earlier, had taken place at 7 p.m. on 7‑6‑1990. Afsar Khan in an injured condition was immediately transported to police Post Shah Salim in a pick‑up by his brother and uncle (P.Ws. Bego Khan and Mir Sahib Khan) where he himself made a report at 8 p.m. The spot no doubt lies in the nearby but by taking into consideration the time consumed in the arranging of a vehicle (pick‑up) on the venue and then taking the injured person to the Police Post, it can be conveniently said that the matter having been intimated to the police within 60 minutes the report was promptly lodged with possible haste. Strangely enough, as we have discussed before, the claim of the prosecution that the deceased (then alive) had himself lodged the report in his own words before A.S.I. Amir Nawab Khan at Police Post Shah Salim has not been questioned from the defence side at any stage of the trial. Neither P.Ws. Bego Khan and Mir Sahib Khan who have advanced ocular evidence in the case, had accompanied Afsar Khan to the Police Post and were present with the deceased when he made a report of the event have been questioned on this pivotal issue nor A.S.I. Amir Nawab Khan who was author of this report has been put to any explanation during his Court statement on this score. Not only this, the doctor who examined the deceased at Civil Hospital, Takht Nasrati after one and a half hour of the report was asked a question as to whether Afsar Khan was in senses at 9‑30 p.m. when he saw him in the Hospital. The report Exh.PA/1 can be thus safely treated as genuine dying statement of Afsar Khan which is not only fully supported on all material particulars in the evidence of two eye‑witnesses but corroborated further by the author who happened to be an Assistant Sub‑Inspector Incharge of a Police Post and the medical evidence furnished by Dr. Asif Iqbal who had found two independent fire‑arm wounds on the victim. Accused Aslam Khan is specifically charged for grazing wound caused over the interior (flexor) surface of left forearm about 2" below the left elbow‑joint lying obliquely, 1/2" x 1/2".

8. This can be, in these circumstances, said that the learned Sessions Judge on passing a judgment of acquittal of the accused has conveniently ignored all this important evidence and placed reliance on irrelevant material brought‑forth on record during cross‑examination on the statements of certain prosecution witnesses including Bego Khan, Mir Sahib Khan and Amir Nawab Khan A.S.I. In his view the report had been abnormally delayed which as we have seen was rather promptly lodged. He similarly for no good reasons came to the conclusion that P.Ws. Bego Khan and Mir Sahib Khan alias Noor Sahib Khan did not accompany the victim from the venue to the Police Post and at the same time made capital out of the registration of a cross‑case from the accused side by drawing a conclusion at his own that both sides had been guilty of misrepresenting true facts while lodging counter‑reports against each other quite ignoring this fact, that accused Aslam Khan when examined by the learned Sessions Judge under section 342, Cr.P.C. did not say a word on the cross‑report and rather showed his complete ignorance on the case by pleading conversely, that as he had gone to Karachi on the following day of the incident he did not know of anything about the event. Although no evidence at all has come‑forth from the mouth of the eye‑witnesses, from the author of the report or the doctor who immediately after that examined Afsar Khan in injured condition, the trial Judge by himself derived a conclusion and showed doubts as to whether the victim when reached the Police Post was alive or in senses and could make a coherent statement.

9. We have failed to understand as to how the Sessions Judge has found the medico‑legal evidence not compatible with the ocular account of the incident furnished by two persons mentioned in the report. The evidence given by P.Ws. Bego Khan and Mir Sahib Khan is not only in line with each other but fully supports the contents of the report on all material particulars. Similarly, in the evidence borne by Dr. Asif Iqbal we find the mentioning of two independent fire‑arm wounds on the left fore‑arm and back left side chest. The victim was naturally not standstill when fired at by the accused as the learned Sessions Judge is of the view that these injuries could not be caused to the deceased by faring from the front side. At the same time he did not believe the accusation of two fire‑shots by taking undue benefit and misreading the statement of Doctor Asif lqbal who has stated that although injury No.1. could be possible with the same bullet but it is not. necessary. The doctor did not, however, rule out the possibility of a second shot. The learned trial Judge also unnecessarily disbelieved the evidence brought‑forth on the long abscondence of the accused by discrediting the statement of P.W. Asmatullah on the sole ground that the Police Constable did not record statements of those persons whose thumb‑impressions had been obtained on the process and that no sketch of the residential house of accused Aslam Khan was drawn by P.W. Asmatullah whereupon he affixed a copy of the proclamation. Besides the accusation of abscondence the prosecution have been able to bring home guilt of the accused beyond any shadow of reasonable doubt on the strength of very material evidence like that of the report lodged by the deceased himself in the Police Post within 60 minutes of the event which is supported in toto by the author a Police A.S.I., two eye‑witnesses and a doctor. The evidence of abscondence in this background was an additional circumstance pointing towards the guilt of the accuse' and it being a strong corroborative piece of material on record should have been shattered by at least some evidence which the accused could produce in defence.

10. We in this place of obscurity in which this matter has been dealt with by the learned Sessions Judge are constrained to hold that the judgment passed by him on the acquittal of the accused is neither supported nor warranted by the evidence brought‑forth during trial of the case. We on the contrary find that the prosecution have established guilt of accused Aslam Khan on the murder charge of Afsar Khan deceased in furtherance of a common intention with the absconding accused beyond any, reasonable doubt and convict him accordingly under section 302/34, P.P.C. The accused is sentenced to suffer imprisonment for life with fine of Rs.25,000, which if realised, shall be paid as compensation to the heirs of the deceased. In case of default in the payment of fine the accused shall suffer rigorous imprisonment for further three years. Consequently, we shall accept the State appeal and set aside the judgment and order impugned.

11. Before taking leave of the appeal, we shall also direct that the judgment and order of this Court shall visit upon the learned Sessions Judge for his future guidance. N.H.Q./1675/ P Appeal accepted.