2004 P Cr (PLP)

MUHAMMAD NADIR KHAN DURRANI, J.‑‑‑ This appeal is directed against the judgment, dated 9‑6‑2000 passed by Sessions Judge, Musakhel whereby appellant has been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. Accused/appellant has been extended benefit of section 382‑B, Cr.P.C. Briefly stated, the facts of the case are that on 23‑9‑1999 P.W. 1 Maiwa Khan lodged report to the effect that at 8‑00 a.m. when his daughter Fatima aged ten years was on her way to school situated adjacent to the house of Noor Dost Muhammad, accused/appellant Bashir Ahmed armed with a pistol appeared and fired at Fatima who on receiving the bullet injury, died. P.W.5 Bakhtiar Defedar Levies Thana Karkhana on receiving of the report reached the place of incident, map of place of incident Exh.P.1/B was prepared, the blood‑stained earth alongwith empties of pistol were taken into possession, blood‑stained Qamiz of deceased produced by Maiwa Khan was also taken into possession. Accused Bashir Ahmed alongwith acquitted accused Abdul Majeed were arrested who were sent to the Court of Sessions Judge, Musakltel at Loralai to face trial under section 302, P.P.C. On the stated allegations charge under section 302, P.P.C. was framed and read over to accused/appellant and acquitted accused Abdul Majeed, they pleaded not guilty to the charge. Prosecution in order to establish the accusation examined five witnesses namely P.W.I Maiwa Khan, P.W.2 Mehar Dad, P.W.3 Allahyar, P.W.4 Muhammad Bakhsh and P.W.5 Bakhtiar Dafedar. Aft6r prosecution closed its side accused/appellant Bashir Ahmed was examined under section 342, Cr.P.C. wherein he denied the allegations made by prosecution and declined to make statement on oath and did not opt to produce any defence witness. Acquitted accused Abdul Majeed was not examined under section 342, Cr.P.C. as the trial Court was of the view that no incriminating evidence has come on record against him. The trial was concluded by means of judgment, dated 9‑6‑2000 whereby accused/appellant has been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life, while accused Abdul Majeed was acquitted of the charge. Mr. Naeem Akhtar, the learned counsel for the appellant argued that there was no evidence whatsoever to connect accused/appellant with the crime. The trial Court mis-appreciated the evidence; statement of P. W.1 who was not an eye‑witness could not be taken into consideration. Besides, he made material improvements making his credibility doubtful. Prosecution failed to establish that deceased Fatima died unnatural death on receiving of fire‑arm injury. P.W.2 and P.W.3 while failed to justify their presence at the spot, have been examined with delay, they are not only related to deceased/complainant but they also made material improvements, hence their statements could not be made basis for the conviction of accused/appellant. The recovery of two empties from the spot in absence of any crime weapon and report of Ballistic Expert could not lend any support to the case of prosecution; the motive remained shrouded in doubt. Hence the conviction and sentence so awarded to the appellant being bad in law require to be set aside. Mr. Sultan Mehmood, the learned Assistant Advocate‑General controverting the contentions so raised by the appellants' learned counsel, argued that the unnatural death of Fatima is proved from the statements of P.W.1, P.W.2 and P.W.3 her blood‑stained clothes were also taken into possession by the Investigating Officer, therefore, failure of prosecution to get post‑mortem of the deceased would not defeat the case of prosecution as the unnatural death of Fatima has been established by ocular evidence. Both P.W.2 and P.W.3 are natural witnesses as they reside in the area and their presence at the spot was justified and defence was unable to create any doubt in said behalf. Besides, defence failed to bring on record any motive or reason on the part of P.W.1, P. W.2 and P.W.3 for false involvement of accused/appellant in the instant case, the statements of witnesses and the circumstances emerging from the record established the charge under section 302(b), P.P.C. against the appellant. Though there was no circumstance to award lesser punishment but the trial Court taking into consideration of age of accused/appellant awarded him lesser punishment, therefore, there is no further room for any interference in the conviction and sentence so awarded to the appellant. The submissions made by the learned counsel for a parties considered, record of the case perused. The case of prosecution as set up in the F.I.R. is that accused/appellant fired at Fatima aged about ten years, when she was on her way to school. Maiwa Khan the father of deceased lodged the report Exh.P.A. which reflects that P.W.1 Maiwa Khan himself did not witness the incident. The report makes no mention that how P.W.1 received the information, also does not disclose the motive on the part of accused for making the attack on Fatima. Maiwa Khan who appeared as P. W.1 in his statement stated that at 7‑30 a.m. or 8‑00 a.m. his daughter left for school, his nephew came to him while he was at his house and informed him that Bashir has caused injury to deceased. He immediately went to his daughter, she was injured and alive on his inquiry she informed him that she was injured by Bashir Ahmed. He took his daughter to Taunsa Hospital but she died on the way, whereafter he lodged report Exh.P.A. In cross‑examination P.W.1 stated that the report was written by one Imam Bakhsh at about 2‑30 a.m. The place of incident is stated to be at distance of 1/2 mile away from his house, while deceased died after she was taken five miles away from the place of incident. P.W.1 was confronted with his report wherein he did not state that his nephew Amanullah came and informed him that Fatima told him to inform her father that she was injured by accused Bashir Ahmed and that on his inquiry his daughter informed him that accused Bashir Ahmed injured her. Similarly he did not state in his statement that his daughter was injured and alive when he reached there and that his daughter died on the way to hospital. P. W.1 denied the plea of defence that deceased did not receive bullet wounds. P.W.2 Mehar Dad stated that on 23‑9‑1999 he was working in his fields at about 8‑15 a.m. sheep/goats entered in his fields he was driving them out of his field when he saw deceased going towards school. Accused Bashir was already standing on the way who fired at deceased with pistol, she fell down. According to P.W.2 he alongwith Allahyar went to the place of incident they informed father of deceased and arranged a vehicle for shifting the deceased to Taunsa Hospital, she died on the way to hospital. In cross‑examination P.W.2 stated that he was at distance of 500 yards from the place of incident while Allahyar was going towards the house of P.W.1 Maiwa Khan. Both P.W. Maiwa Khan and P.W. Allahyar are stated to be his cousins. The house of Allahyar is stated to be about two miles from the place of incident. According to P.W.2 he resides at Taunsa Punjab Province and voluntarily added that they have house in Karkhana Tehsil Musakhel. P.W.2 further stated that six camels entered his field, however, he expressed his ignorance about ownership of the camels. P.W.2 contended that he did not try to catch the accused because he went to deceased to take her to hospital. The Datsun was brought from Karkhana by Allahyar and Amanullah went to inform P.W. Maiwa Khan. The lands of Maiwa Khan and Sher Jan are stated to be adjacent to his land. According to P.W., Sher Muhammad brother of P.W Maiwa Khan informed Levies. Further Levies came to the spot and to the house of deceased but P.W.2 expressed his lack of knowledge with regard to coming to Levies officials to the graveyard. According to P.W.2 he and Allahyar got recorded their statements on 24‑9‑1999 at Levies Thana. P.W.2 was confronted with his statement recorded under section 161, Cr.P.C. wherein he did not state that deceased was accompanied by Amanullah, Abdul Ghafoor and Zahoor. P.W.3 Allahyar stated that on 23‑9‑1999 at about 8‑15 a.m. he was going towards the house of Maiwa Khan. When he reached near the house of Dost Muhammad he saw accused Bashir Ahmed who fired on Fatima with pistol and ran away from the spot. The incident was witnessed by him and Mehar Dad. Amanullah was sent to the father of Fatima to inform him about the incident. Injured Fatima died while she was being taken to hospital. In cross‑examination P.W.3 stated that P.W.1 Maiwa Khan and P.W.2 Mehar Dad are his distant relatives. According to P.W.3 his house would be at distance of about two miles .from the place of incident. P. W .3 further stated that Sher Muhammad brother of P.W. Maiwa Khan informed the Levies about the incident. Defedar Levies alongwith two Levies Sepoy inspected the place of incident. P.W.3 stated that he alongwith Mehar Dad were examined on the next day of the incident. On being questioned by defence counsel P.W.3 stated about taking into possession blood‑stained earth preparation of sketch of place of incident by Levies. He further stated that he alongwith P. W.2 Mehar Dad took the deceased in the vehicle of Ghulam Qadir. According to P.W.3 they could not chase the accused as he immediately ran away from the place of incident and they were to take care of deceased to save her life. P.W.4 Muhammad Bakhsh Levies Sepoy stated that on 23‑9‑1999 he alongwith Dafedar Levies went to the place of incident where blood‑stained earth and two empty rounds of pistol were seized, however, P.W.4 did not identify his signatures on the seizure memo. In cross‑examination P.W.4 stated that they reached the place of incident ac about 10‑00 a.m. or 10‑30 a.m. Although P.W.4 denied preparation of any document on the spot but he did not concede to the plea of accused that blood‑stained earth and empty rounds were not recovered from the spot. P.W.5 Bakhtiar Dafedar Levies Thana Karkhana stated that on 23‑9‑1999 a case was registered with Levies Thana on the report of P. W. 1 Maiwa Khan. The investigation of the case was conducted by him he alongwith Imam Bakhsh Levies officials went to the place of incident. Sketch of Wardat Exh.P.B. was prepared by him. The blood‑stained earth article 1 and empty round article 2 of pistol from the place of incident were seized by him vide memos Exh.P.C. and Exh.P.D. The blood‑stained Qamiz article 3 of deceased handed over to him by Maiwa Khan was taken into possession vide memo. Exh.P.E. He recorded the statements of the witnesses and. submitted challan Exh.P.F. In cross examination P.W.5 stated that report Exh P.A was received by him at 10‑00/11‑00 a.m. The report was written by Munshi who reside in Punjab Province. P.W.5 could not read the report Exh.P.A., according to P.W.5 when he visited the place of incident nobody was present there and he himself prepared Exh.P.B. P.W.5 on being asked to read the contents of the sketch of the Wardat expressed his inability stating that his eye‑sight is weak. According to P.W.5 at the time of incident deceased was accompanied by small boys, however, he did not record their statements. Further in Exh.P.B. he had not mentioned the point wherefrom the eye‑witnesses witnessed the incident. The empties and the blood‑stained earth were not sent to the Expert. According to P.W.5 both the witnesses were brought by Maiwa Khan. Musakhel Town is stated to be at distance of 40 miles away from the Karkhana Levies Chauki. P.W.5 was also confronted with, the improvements made by P. W.1 Maiwa Khan in his statement. The careful analysis of the statements referred to hereinabove reveal that P.W.1 Maiwa Khan who is father of deceased himself did not witness the incident the information of the same teas received by him through one Amanullah. Although P.W.1 in his statement claimed that he went to the injured who was alive and she told him that she was injured by Bashir Ahmed but the said portion of his statement finds no place in his report Exh.P.A. Further both the eye‑witnesses P.W.2 Mehar Dad and P. W.3 Allahyar also do not support P. W. 1 in said behalf. Therefore, the said portion of the statement of the P.W.1 cannot be admitted in evidence, however, the fact that on being informed about receiving of fire‑arm injury by his daughter Fatima he reached the spot and he alongwith P. W.2 and P. W. 3 took Fatima towards hospital, who on the way succumbed to the injuries could trot be shaken by the defence. P, W.2 Mahar Dad and P. W.3 Allahyar who though are related to P. W.1 have shown their presence at the place of incident, the presence of P.W.2 as stated by him is found to be somewhat natural as he was working in his fields and defence could not dispute or shake the statement of P.W.2 with regard to his fields being situated at distance of 500 yards from the place of incident. P.W.3 Allahyar claimed to be present at the spot as he was on his way towards the house of P.W.1 Maiwa Khan. The statement of P.W.3 in said regard remained intact and he is supported by P.W.2 who in cross‑examination explained the presence of P.W.2 by stating that Allahyar was going towards the house of Maiwa Khan. Statements of P.W.2 Mehar Dad and P.W.3 Allahyar are attacked on the ground that they are related to complainant, their statements were recorded on the next day of incident without explaining the delay and that both the witnesses made improvements in their statements. The fact that P.W.1, P.W.2, P.W.3 are inter se related has been admitted by all of them. However, nothing has been brought on record to show that any of them had any enmity or evil motive against the accused prior to the incident so as to provide any reason on their part for false involvement of accused. In absence of such motive against the accused, mere relationship of P.Ws. would not disqualify them to be witness of the incident subject to the condition that their statements are otherwise found to be true and their presence at the scene of occurrence is well‑explained. As already pointed out that P.W.1 in his statement made improvement with regard to disclosure of his daughter about causing of injury to her by accused Bashir Ahmed. The statement of P. W. 1 to the said extent has already been excluded, whereas, the statements of P. W.2 Mehar Dad and P. W.3 Allahyar are found to be free from any material improvement so as to make their statements inadmissible in evidence. Their presence at the time of commission of offence has been explained. The place of occurrence is a thoroughfare therefore, presence of P.W.3 was very much probable and defence could not falsify him in said regard. The Honourable Supreme Court in its judgment 1997 SCMR 819 repelled the plea that a passerby is always a chance witness and observed as under:‑‑ "Reference may usefully be made to Javaid Ahmed alias Jaida v. The State 1978 SCMR 114 wherein it was observed by this Court when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passerby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony." Both P.W.1 and P.W.3 were examined on 24‑9‑1999, i.e. on the next day of occurrence. Their statements reflect that after the incident they accompanied the deceased' towards hospital and thereafter they remained with the complainant till the burial of Fatima. This provides reasonable explanation for delay on their part, besides it was the duty of Investigating Officer to record the statements of P. Ws. as early as possible, hence the said delay cannot reflect on credibility of any of P.Ws. Further defence pointed out that both the P.Ws. were produced before the Investigating Officer by P. W.1 Maiwa Khan which gives rise to the probability that both the witnesses were tutored by P.W.1 and they made statements as per his wishes being his close relatives. The said fact if even believed the same would not lead to any adverse inference in absence of any material on the record so as to defeat the statement of P.W.2 and P.W.3 by creating doubt with regard to their presence at the scene of occurrence and P.W.1 having any motive to falsely implicate the accused/appellant in the commission of offence. In absence of any such circumstance when the statements of P.W.2 and P.W.3 ring true and both corroborate each other on all material points, their testimony cannot be kept out of consideration on .the objections to be raised by appellant's learned counsel. The Honourable Supreme Court providing the guidelines for appreciation of evidence of witnesses who are related to deceased/complainant have repeatedly held that in absence of any motive on the part of witness to falsely implicate the accused in the commission of offence and when their statements are otherwise found to be confidence inspiring and meet all the standards for admitting the same in evidence, the same cannot be kept out of consideration only because the witnesses are related to deceased/complainant. We support our such view by the observation of Honourable Supreme Court in its judgment 2000 SCMR 383 which reads as under:‑‑ "There is no need to emphasize that mere relationship of the witnesses with the deceased would not detract from their veracity as they had absolutely no motive of their own to.‑involve the appellants." Admittedly neither the post‑mortem of deceased was conducted nor she was examined by Medical Officer, the defence taking benefit of the same had been agitating that Fatima did not meet violent death. She is stated to have died her natural death. However, the fact that Fatima died on 23‑9‑1999 is not disputed. It is well‑settled law that medical examination/post‑mortem of deceased is made for limited purpose only to corroborate and support the substantive or circumstantial evidence. Failure to conduct post‑ mortem/medical examination of deceased would not allow to disbelieve that deceased died unnatural death. The Honourable Supreme Court in its judgment 1998 SCMR 1778 dilating upon the issue observed as under:‑‑ "It may be seen that case‑law relied upon by learned counsel for parties has been discussed above. We have thoroughly compared and scrutinized the ratio decidendi in afore‑quoted reported judgments and relevant law. We cannot subscribe to the observations which may suggest that failure to conduct post mortem would demolish the prosecution case. Obviously there would be numerous situations when post‑mortem may not even be conducted. In various parts of the country on account of long standing customs and established traditions tribesmen do not allow post‑mortem of the deceased. Thus, keeping in view all the relevant factors and law, we are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries sustained without being any element of negligence or other intervention, the non‑performance of post‑mortem would not be fatal." In another case reported in 2001 YLR 279 where the medical evidence and ocular evidence were found to, be, in contradiction it has been held that the ocular testimony is to be given preference over medical evidence thereby meaning that if the ocular evidence proves the injuries and the unnatural death, the same cannot be brushed beside only because medical examination/post‑mortem was not conducted. At this juncture we are unable to withhold our observation with regard to the weakness of the investigation such as non‑preparation of inquest report, non‑performing of medical examination/post‑mortem of deceased, chemical examination of blood‑stained earth and blood‑stained clothes, of deceased, which has occurred on account of investigation made by a Dafedar Levies who seems to be illiterate as he neither could read the report Exh.P.A. and memo. of site inspection. Exh.P.B. He has no knowledge or experience of investigation. Despite all the weaknesses in the investigation we are unable to extend any benefit of the same to the accused as we are fully convinced that the statements of P. W.2 and P. W.3 not only prove the unnatural death of deceased Fatima in result of, fire‑arm injury but their testimony prove without any shadow of doubt that it was accused/ appellant who fired the shot with pistol which proved to be fatal and resulted in death of Fatima. The objections so raised by the appellants learned counsel in the circumstances referred to hereinabove is found to be having no force. The Division Bench of Peshawar High Court in its judgment 1993 PCr.LJ 2022 repelled the objections similar to that raised in the case in hand, .with regard to admissibility of the statements of witness and recorded observations as reflected by the following head note:‑‑ ‑‑‑‑ Ss. 302(b), 324 & 353‑‑‑Appreciation of evidence‑‑‑Murder‑‑‑Dead bodies although were not subjected to autopsy, yet the omission was immaterial as the death of the deceased by violence i.e., by firing was not questioned on behalf of the accused‑‑‑Non‑mention of the names of eye‑witnesses in the F.I.R. and the site plan was not fatal as the F.I.R. was not made by an eye‑witness or relative of the deceased and the site plan was not a substantive piece of evidence‑‑‑Delay in recording the statement of an eye‑witness reflected on the efficiency of the police and not the credibility of the witness and the same did not smack of consultation or machination as he had given a simple and straightforward account of occurrence which was corroborated by independent evidence coming from 'an unimpeachable source‑‑‑Other eye‑witness was not a chance witness in true sense of the word as the occurrence had taken place in a Chowk and not at a deserted place and his testimony did not suffer . from any inherent defect or infirmity‑‑ Identification parade was not necessary as both the eye‑witnesses had seen the accused at the time of occurrence and one of them had joined the police party which had chased the accused and apprehended him‑‑‑No mitigating circumstance being available in favour of accused he fully deserved the sentence of death‑‑ However, sentence of death as Qisas having been awarded to accused by Trial Court without undertaking the exercise of Tazkiyah‑al‑Shuhood, was altered to death as Tazir which too was an Islamic punishment‑‑‑Conviction and sentence of accused under S.324, P.P.C. for attempt to commit Qatl‑i‑Amd of prosecution witnesses were set aside as one of them had not charged anyone for his plight and the other had expired in the hospital‑‑‑Conviction and sentence of accused under S.353, P.P.C. were, however, maintained. The upshot of the discussion is that the accused/appellant is found to have committed Qatal‑i‑Amd of Fatima hence the charge under section 302(b), P.P.C. stands proved against him. The accused/appellant has been sentenced to imprisonment for life as the learned Sessions Judge Musakhel found the accused to be a young man of school going age. However, there is nothing on the record, whereby the age of accused can be ascertained, hence we are left with the observation so recorded by the Sessions Judge and in absence of any material to negate the same it is to be deemed correct, besides it is well‑settled principle of criminal justice that the view favourable to accused is to be accepted, therefore, accepting the observation of the learned trial Judge accused is considered to be young man of tender age. Although the said factor by itself cannot be considered to be mitigating circumstance, to award lesser punishment but the same when coupled with absence of motive and firing of only one shot at deceased without repeating the same justifies lesser punishment. Besides State has not filed any appeal for enhancement of the sentence of the appellant; which reflects the satisfaction of the State with regard to quantum of sentence. Taking into consideration all the above factors we find no room for ‑interference in the conviction and sentence so awarded to the appellant. Conviction and sentence of life imprisonment awarded to the appellant is upheld. Appeal having no merits is dismissed. N.H.Q./22/Q Appeal dismissed.