P L D 1994 Peshawar 41 (PLP)

(4) 1" only skin hole no deep upper penetration 1" lateral to right. Internal Examination: Larynx and trachea was cut alongwith arteries that were near it. Stomach was full of contents. Bone broken of right upper arm. In the opinion of the Doctor death was due to shock and haemorrhage since arteries to vital organs were cut in neck due to fire‑arm weapon injury. Probable time between injury and death was opined as 5 to 10 minutes and between death and P.M. 1 to 6 hours. The Doctor proved the P.M. report Exh. P.M. in his writing and bearing his signature. The injury‑sheet Exh. P.W. 9/1 of Said Wali prepared by Doctor Ismail was proved by Doctor Tahir Shah (P.W.9) because Doctor Ismail had gone abroad. The injury‑sheet Exh. P.W.9/1 showed fire‑arm injury on left calf i.e. one lacerated wound 1" long on left calf. Weapon used was fire‑arm. Duration was two hours. Patient was sent home on the same day after dressing. The injury was opined as simple.

4. To prove the charge against the accused the prosecution produced 9 P.Ws. Subz Ali H.C. (P.W.2) is the marginal witness to the recovery memo. Exh. P.C., vide which the Pistol, one Bandolier, loaded charger one empty, a spare charger, six live rounds were taken into possession by the Investigating Officer. He deposed that articles were brought by him and Redi Gul (P.W.3) from the Hospital and produced to the Investigating Officer. Redi Gul (P.W.3) deposed that he and Subz Ali (P.W.2) apprehended the accused alongwith pistol. Nawab Ali H.C. (P.W.4) is the marginal witness to the recovery memo. Exh.P.C./1 and Exh.P.C./2. Said Wali (P.W.5) and Javed (P.W.6) furnished the ocular account of the occurrence. Said Wali is the servant of father of the deceased. Javed is the real brother of the deceased. The ocular account of the occurrence given by them is that they alongwith the deceased were present in the green market where the deceased and Javed owned shops. They had seen the accused armed with pistol and firing at the deceased who was hit and killed. Said Wali, complainant, was also injured. The accused was apprehended by the police constables alongwith the pistol. The P.Ws were cross‑examined at length. They admitted blood feud between the parties. They were also examined to show that the F.I.R. was lodged at the spot after preliminary investigation and further that they were not truthful witnesses. Muhammad Ijaz (P.W.7) conducted the investigation as narrated above. The; witness was cross- examined to show that the report was made after preliminary investigation and that the accused was not arrested in this case, as he was already under arrest by Mardan Police in the case under section 13, A.O. He was further cross- examined to show that the recoveries were fake and the investigation was dishonest. Mst. Roshana (P.W.8) identified the dead body of the deceased in the mortuary. Doctor Shahid Kundi, (P.W.1) and Doctor Tahir Shah (P.W.9) proved the post‑mortem report of the deceased and the injury sheet of the complainant.

5. After the close of prosecution evidence the accused was examined under section 342, Cr.P.C. who admitted blood feud enmity with the family of Dad Khan deceased but denied the charge of committing murder of Dad Khan deceased. When questioned about his arrest by two policemen alongwith .30 bore pistol and other articles, his reply was as under:‑‑ "It is incorrect. The real facts are that my pistol had developed some fault for which I had brought the same for repairs to Arms shop situated at G.T. Road, it was about 9‑30 a.m. when I was arrested by the Mardan Police, near the exit gate of G.T.S. (G.T. Road) under 13, Arms Ordinance and was put in P.S. Hashtnagri lock‑up, after 2/3 hours of my arrest the complainant party of murder case came to the ' P.S. and when they saw me in police lock‑up they charged me for the murder of Dad Khan deceased, because we had blood feud since long. At the time of recovery of the pistol, it was not sealed as weapon of offence in the murder case but it was the case property of 13 Arms Ordinance, moreover the police official of Mardan, by whom I was arrested under 13, A.O. has not been cited as a prosecution witness nor produced before this Honourable Court as it was not favourable to the prosecution which further shows mala fides and dishonesty on the part of the investigation officer:' About the positive report Exh.P.W.7/2 of the Arms Expert the accused replied that the empties were not recovered in his presence and were kept by the police for about nine days. When questioned as to why the P.Ws. have deposed against him, his reply was that Said Wali was gunman of the deceased while Javed is the brother of the deceased and Said Wali is a false witness and all the witnesses are highly interested. The accused professed innocence. He neither appeared as his own witness nor produced any defence.

6. The trial Court believed the ocular testimony furnished by Said Wali (P.W.5) and Javed (P.W.6) on the view that former being injured and the latter owning shop nearby, had witnessed the occurrence. The testimony of Redi Gul (P.W.3) who apprehended the accused on the spot was also believed. The existence of blood feud between the parties was considered a strong motive for the crime. The positive report of the Arms Expert, recovery of blood stained earth from the spot and medical evidence were taken as corroboration to the ocular testimony of the P.Ws. The arrest of the accused by Redi Gul (P.W.3) and Subz Ali (P.W.2) coupled with the statement of the accused recorded under section 342, Cr.P.C. provided ground for believing that the accused had committed the murder of the deceased. The plea taken by the accused that he was arrested in some other case by the Mardan Police was ignored, for the accused failed to produce the F.I.R. registered against him in that case. The inconsistencies in the statements of the P.Ws. regarding the timing were held to be insignificant as the witnesses could not remember the exact time of occurrence as they were examined after two years. Accordingly vide judgment dated 16‑1‑1992, the learned Additional Sessions Judge, Peshawar convicted and sentenced the accused appellant as above.

7. Mr. Zahurul Haq, Advocate, for the appellant contended that the prosecution failed to prove the charge against the appellant. His arrest on the spot in connection with the present case is not 'proved. The statement of accused in its entirety should have been considered by the trial Court. He next contended that the time of occurrence given in the F.I.R. is not in conformity with the timing given by the witnesses, therefore, it is not proved that the occurrence had taken place at 12‑00 noon. The arrival of police on the spot as admitted by the witnesses indicated that preliminary investigation was conducted before the registration of the case. The learned counsel further contended that medical evidence is in conflict with the ocular account given by the witnesses as the deceased had received injuries of two different sizes indicating use of two weapons and the involvement of two persons in the crime. The delay in sending the empties for comparison to the expert was challenged PLD 1963 (W.P.). Karachi 891 was referred. It was argued that Said Wali and Javed are highly interested witnesses and without corroboration of their testimony, no reliance can be placed on them. PLD 1990 Peshawar 10 was cited. Lastly it was argued that moral certainty or suspicion cannot take the. place of legal proof PLD 1964 (W.P.) Pesh. 67 was cited.

8. Mr. Khalid Khan, Advocate, for the State assisted by Khawaja Muhammad Khan, Advocate, for the complainant in reply argued that the impugned judgment does not suffer from any illegality and is based on the correct appreciation of evidence and that the accused was arrested on the spot alongwith the weapon of offence, the ocular testimony furnished by Subz Ali and Javed (P.Ws.) has rightly been accepted as not only their presence at the time of occurrence was proved but their testimony found corroboration from the recoveries, medical evidence and the strong motive. The minor discrepancies in the timing of occurrence would make no difference. They relied on the following case law:‑‑‑ (1) PLD 1975 SC 227. (2) 1990 SCMR 1083. (3) 1992 P Cr.LJ 2609. (4) 1988 P Cr. LJ 1055.

9. We have heard the learned counsel for the parties and with their assistance have gone through the entire evidence. We are of the view that the charge against the accused is proved beyond doubt and the impugned judgment is based on correct appreciation of evidence. Said Wali who lodged the report is an injured witness. His presence at the time of occurrence cannot be doubted. Javed (P.W.5) owned the shop in the green market adjacent to the shop of the deceased. He was present in his shop when the accused armed with pistol started firing hitting the deceased who died on the spot and Said Wali was injured. He had also seen the two persons apprehending the accused. The ocular testimony furnished by these two P.Ws. cannot be brushed aside merely on the ground of their being interested witnesses inasmuch as their testimony finds corroboration from the other circumstances i.e. the apprehension of the accused on the spot by Redi Gul (P.W.), matching of empties recovered from the spot with the weapon of offence as per report of the fire‑arms expert, recovery of blood‑stained earth from the spot and from medical evidence. Even the accused in his statement recorded under section 342, Cr.P.C. admitted his arrest on the spot but has taken the plea that he was arrested by the Mardan Police in the case registered against him under the Arms Ordinance. This plea is not substantiated by any evidence. The prosecution was not bound to prove the defence version. In Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274 it is held:‑‑ "No rigid or inflexible rule can be laid down with regard to the kind of evidence that must be produced for establishing the guilt of the accused in a criminal case. A finding on such a question must perforce depend upon the nature of the crime and the manner in which it is committed warranting a careful evaluation of the evidence led at the trial in the background of the circumstances and special features of the particular case. If the Court upon doing so is satisfied that it can, in all the circumstances of the case before it, prudently act upon the supposition that the accused therein cannot be but guilty of the offence laid against him it would be justified in so holding and convicting him of the offence of which he is accused."

10. In the present case the two P.Ws. Said Wali and Javed were present at the time of occurrence. Their testimony cannot be rejected merely on the ground of some conflict with the medical evidence or because of some inconsistencies in their statements. The inconsistencies pointed out by the learned counsel for the appellant about the timing of the occurrence are not so relevant to be considered in the facts and circumstances of the case. The witnesses who were examined after two years of the occurrence could not be expected to have given the exact time of occurrence. Since the presence of these two P.Ws. is proved and we accept them as truthful witnesses, therefore, any conflict with the medical evidence does not detract the evidentiary value of the eye‑witnesses. We may with advantage reproduce hereunder the observations of the Supreme Court in Muhammad Younas and another. v. The State and others 1990 SCMR 1272:‑‑ "There is no principle of law that in each and every case doctor's evidence must have preference over the direct evidence. If the witnesses have seen the incident and they have implicated the accused and their statements have been accepted by the Courts then any conflict with the evidence of expert does not detract from the evidentiary value of the eye‑witnesses." The delay in sending the crime empties and weapon to the expert is not fatal for the reason that nothing is brought on record to show any fabrication. No. specific question was put to the Investigating Officer as to the reason of delay in sending the empties and weapon of crime to the expert. In the case reported in PLD 1963 (P.W.) Karachi 891 the delay in sending the crime empties and weapon to expert was doubted only because there was no evidence to show that the empties were sealed into parcel on the spot and one innocent person was also found involved with the guilty. It is indeed true that moral certainty or suspicion cannot take the place of legal proof as held in PLD 1964 (W.P.) Pesh. 59 but here in the present case it is not a suspicion which has been considered but the prosecution has produced convicting ocular evidence finding corroboration from the circumstantial evidence narrated above and has succeeded in bringing home the charge against the accused beyond doubt.

11. For the aforesaid reasons we dismiss convict's appeal and confirm the death sentence awarded to him. N.H.Q./1510/P Appeal dismissed