2001 PLP 90 (SCMR)

ABDUR REHMAN KHAN, J.

The appellant alongwith his brother Abdul Hameed and two other accused were tried by the learned Additional Sessions Judge, Faisalabad for the murder of Diwan Ali and for murderous assault at Abdul Ghafoor and by judgment, dated 30-5-1995, the other accused were acquitted, but the appellant was convicted under section 302, P.P.C. and was sentenced to life imprisonment plus Rs.20,000 as fine or in default to suffer six months' R.I. and on conviction for the murderous assault he was imprisoned to one year R.I. and Rs.1,000 as fine or one month R.I. The sentences were ordered to run concurrently and the amount of fine, if recovered, was to be paid to the legal heirs of the deceased.

2. Muhammad Ali (P.W.5) reported the murder of his brother to the Police at 12-50 on 20-12-1989 which had occurred the same day at 11-50. It was stated in the report that he, Diwan Ali (deceased) Abdul Ghafoor and Abdul Hameed had gone to attend the hearing of a case in the Court of Additional Sessions Judge, Faisalabad and after attending the case they returned to their house in Gulistan Colony. At 11-50 when they reached in front of the Nursery of Tahir Javed they noticed a car following them which stopped near them. Abdul Majeed, Abdul Hameed and Nusrat Iqbal armed with carbine alongwith a unknown person, who was driving the car, all of a sudden came down from the car. Abdul Majeed raised 'Lalkara' that they would be taught lesson for killing Abdul Rashid, therefore, the complainant and the P.Ws. started running. Abdul Majeed fired with carbine at Diwan Ali which hit him on his back. Second shot with the weapon was fired by Nusrat Iqbal at Diwan Ali which hit him on the right plank and with that Diwan Ali fell to the ground. Abdul Ghafoor came forward to save his brother Diwan Ali who was fired at by Abdul Hameed and pellets hit him on left side of the head. When they made hue and cry then the accused decamped from the spot.

3. Motive for the crime was that one year back Abdur Rashid brother of the complainant was murdered for which Abdul Ghafoor, brother of the appellant was charged.

4. The learned trial Court, however, convicted the appellant on the testimony of the eye-witnesses which according to it found support from the medical evidence, the recovery of the crime weapon at the instance of the appellant, motive coupled with the opinion of various Investigating Officers who ht different stages were entrusted investigation of the case. In appeal the learned Judge in the High Court by the impugned judgment agreed with the reasoning and conclusion reached by the trial Court and further used the abscondence of the appellant for about one month and seven days as corroborative evidence and consequently dismissed the appeal.

5. Leave was granted in these terms:

"The petitioner has been convicted out of the six co-accused who were tried together, Sultan Skinder, one of the co-accused, died during the trial, but the other were acquitted by the trial Court on the basis of one and the same evidence. Learned trial Court proceeded to sift the prosecution evidence observing that the eye?witnesses were interested as well as inimical. The learned Judge of the High Court has observed that these witnesses cannot be termed as interested witnesses. The question whether the evidence on record has been appraised keeping in view the principles settled by the superior Courts or not, require examination."

6. Learned counsel argued that the F.I.R. was lodged with unexplained delay which rendered the prosecution case doubtful. This argument is not well founded. The F.I.R. appears to have been promptly lodged as the occurrence took place at 11-50 whereas the report was made at 12-50: Moreover, it could not be shown as to what prompted the informant to involve the appellant directly for effective shot at the deceased when Abdul Ghafoor, the killer of Abdur Rashid brother of the complainant, was also present on the spot alongwith the appellant. It was next argued that the eye?witnesses were interested being brother of the deceased. It is not inflexible rule that the evidence of interested eye-witnesses should not be believed at all. The learned trial Judge and the learned High Court having considered the intrinsic value of the statement of the eye-witnesses have found it confidence inspiring. We could not be shown any substantial flaw in this evidence so as to discard it from consideration. It was argued that Abdul Ghafoor, P.W. stated in his statement that he was hit with fire shot, but the Medical Officer found blunt injuries on his person; therefore, he could not be relied upon. It is by now settled principle that grain is to be sifted from chaff and thereafter if a portion of a certain evidence appears to be true then that can be used against the accused. It was found by the trial Court that the injuries on the person of Abdul Ghafoor were the result of the firing of the appellant and not that of Abdul Hameed and the reasons in this respect given in the judgment are plausible. It was next submitted, after reading the evidence of P.W.2 Dr. Rashid Maqbool, Medical Officer, that there was blackening on the wound of the deceased and on this basis it was stressed that the medical evidence belies the ocular account. The learned Judge in the High Court has dealt elaborately with this contention which is reproduced below and which furnishes a valid answer to this argument:- "The contention that the medical evidence is at variance with the ocular testimony is not acceptable. Muhammad Ali (P.W.5) stated that the injury was caused from a distance of 7-1/2 feet, while according to Abdul Hameed (P.W.7) this distance was 6/7 feet. No question was put to Abdul Ghafoor (P.W.6) in this regard. The P.Ws. stated that on seeing the accused arriving in a car they tried to run 4way. In such a situation they could not measure the exact distance from which the appellant had fired on the deceased. The difference of 2/3 feet is inconsequential. Aurangzeb Draftsman (C.W.2) mentioned the distance between point No.4 (where the car was parked) and point No.5 (where the deceased was hit) as 8 feet in the site plan Exh.C.W..2/A and C.W.2/B. Obviously. the accused took one or two steps after alighting from the car before firing at Diwan Ali (deceased). Thus, the distance between the fire-arm and the deceased was further reduced. Muhammad Ali P.W.5 in his cross-examination stated that he did not know how many furlongs were in one K.M. or how many yards were in one furlong. How can he be expected to tell the exact distance in question in fact? In fact by giving 7 or 8 feet distance the P.Ws. simply meant that the deceased was fired at from a close rang. So, the medical evidence in this case is consistent with the ocular evidence and furnishes some corroboration of the ocular evidence." It was lastly argued that on the same evidence other accused have been acquitted and, therefore, the appellant could not be convicted. The appellant was found to have fired effectively at the deceased and cogent and believable reasons have been given for accepting the eye account against him. Moreover, the medical evidence and the abscondance of the appellant were rightly used as corroborative evidence. We have gone through the evidence and are of the view that the learned trial Court has correctly found- the appellant guilty of the charge and the learned Judge in the High Court rightly agreed with the conclusion of the trial Court. We find no merit in the appeal and, accordingly, dismiss it.