1989 P Cr (PLP)

4. The accused‑appellants were charged with two heads: firstly under section 302/34, P.P.C. and secondly under section 323/34, P.P.C. to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case against the accused‑appellants, produced Muhammad Faraz Khan (P.W.1), Sher Ahmad (P.W.2), Sher Nawaz (P:W.3), Doctor Ihsanullah Khan (P.W.4), Gul Qadam Jan (P.W.5), Mst. Zarifa (P.W.6) and Sultan Ali Khan S.H.O. (P.W.6) while rest of the witnesses were abandoned being unnecessary. Of them, Gul Qadam Jan (P.W.5) and Mst. Zarifa (P.W.6) who furnished the ocular account of the occurrence are eye‑witnesses while the rest are formal in nature whose deposition has already been discussed in the earlier part of this judgment and need not be reiterated.

5. Doctor Ihsanullah Khan (P.W.4) conducted autopsy on the dead body of Imam Jan (deceased) on 20‑7‑1984 at 9‑00 p.m. and found the following injuries on his external examination:‑ (1) Lacerated wound 1" x 1/2" x 1/4" on the left side of scalp, 3" above the left eye. (2) He was bleeding from both the ears. (3) Depression of left side of face and scalp. (4) Fire‑arm inlet wound 1/4" x 1/4" on left side of scalp 1" posterior to wound No.1. (5) Fire‑arm outlet wound 1/4" x 1/4" inverted edges on the left of occipit 2" to the left ear. According to him, the post‑mortem examination revealed fracture of frontal, left parietal, left temporal, occipital, left axillary and left mandible. In his opinion, the cause of death was shock, haemorrhage and injuries to vital centre of the brain caused by blunt means. The probable time between death and injuries was five to fifteen minutes while that between death and post‑mortem examination was five to seven hours. The post‑mortem report (Exh.P.H.) was stated to be correct duly signed by him. He also examined Gul Qadam Jan complainant (P.W.5) on the same day at 6‑00 a.m. and found the following injuries on his external examination: (1) An oval bruise surrounded by teeth marks 1/2" and 1" on the right shoulder 1/2" above the middle of right clavical. (2) An oval bruise surrounded by teeth marks 1/2" x 1" on the front and middle of right upper arm. The injuries were determined to be simple and were caused by blunt means. The probable duration of the injures was 2 to 3 hours. The medico‑legal report Exh.P.K. was confirmed in his handwriting and signed by him.

6. In cross‑examination, the doctor admitted to have examined accused appellant Sher Azam on the same day i.e. 20‑7‑1984 at 5‑45 p.m. and found the following injuries on his person:‑ (1) An incised wound starting 1‑1/2" below the right eye cutting the right nosal cartilage completely extending to the upper lip slightly to the left of upper lip 3" x 1‑1/8" x 1/2". (2) Lacerated wound 2" x i‑1/2" on the scalp 4" above the left eye. Injury No. 1 on the person of the accused‑appellant Sher Azam was caused by sharp means while injury No.2 was by blunt means within duration of three hours. In cross‑examination, the doctor opined that the injuries on the person of Gul Qadam Jan complainant (P.W.5) were the result of teeth bite caused by one man as the size of both the injuries was the same. In the same way, he admitted that the lacerated wound caused to Imam Jan (deceased) was the result of blunt means.

7. Gul Qadam Jan (P.W.5) in his statement in Court reiterated the entire prosecution version in the same manner as disclosed by him in the F.I.R. as mentioned in detail in the introductory part of the judgment with the only addition that Mst. Zarifa (P.W.6) his mother, was also attracted to the spot and witnessed the occurrence. He was thoroughly cross‑examined in this behalf. Mst. Zarifa (P.W.6), according to the note given by the learned trial Judge, was an old infirm lady brought in wheel chair. She not only corroborated the prosecution version but made improvements in it inasmuch as she added that Sher Azam appellant picked up a stone and gave blows to the deceased on his head while the other accused‑appellants were busy belabouring the complainant (P.W.5). The learned trial Judge has excluded her statement from consideration for the reason that she was a chance witness and made a clear improvement in her Court statement casting doubt in her veracity. On appraisal of the evidence so produced, the learned trial Judge convicted and sentenced all the appellants as stated earlier. Hence the instant appeal by them and the revision by the complainant for enhancement of their sentences.

8. We have heard Mr. Sanaullah Khan Gandapur, Advocate assisted by Mr. Muhammad Karim Anjum Qasuria counsel for the appellants and Mr. Ejaz Muhammad Khan, Assistant Advocate‑General for the State assisted by S. Zafar Abbas Zaidi, counsel for the complainant at length and have thoroughly scrutinized record of the case with their assistance.

9. The thrust of the argument of the learned counsel for the appellants is that there is an unexplained delay in lodging of the first information report; that the prosecution has miserably failed to explain the origin of the fight; that the medical evidence does not support the eye‑witness account; that there is no independent witness in support of the prosecution case and that it was not safe to base conviction on the solitary statement of Gul Oadam Jan complainant (P.W.5) being the brother of the deceased and falling within the category of interested witnesses; that in any way the complainant had suppressed the material facts going to the very root of the case and that there were two versions of the occurrence before the learned trial Judge; that under the law he was bound to accept the one favourable to the accused‑appellants and finally that the case against the accused‑appellants was not free from doubt, the benefit whereof should have been extended to them.

10. In repelling these contentions, the learned Assistant Advocate‑General, on the other hand, argued that there was no delay in lodging of the first information report; that simply because the solitary witness happens to be the brother of the deceased would not per se result in the exclusion of his evidence from consideration; that the presence of Gul Oadam Jan complainant (P.W.5) at the spot at the relevant time was admitted in the cross‑F.I.R. lodged by Sher Azam appellant; that two of the appellants, namely, Mir Zalam and Sadrul Shaheed alias Sadrey made themselves scarce after the occurrence which proves their guilt in the commission of the crime and that there was no motive for falsely implicating the appellants for the murder of the deceased in substitution of the real culprits.

11. We have anxiously considered the arguments of the learned counsel of either side. The learned trial Judge has not relied upon the statement of Mst. Zarifa (P.W.6). The learned Assistant Advocate‑General conceded that her statement was rightly excluded from consideration and consequently we are also not inclined to place reliance on her deposition. Thus the prosecution's case hinges on the solitary statement of Gul Oadam Jan complainant (P.W.5). Admittedly he is the brother of the deceased but this fact alone will not make his statement unworthy of credence if his presence on the spot is found to be natural A and his deposition otherwise fits in and gets corroboration from the surrounding circumstances of the case. Both the parties, immediately after the occurrence, rushed to the police station and lodged their reports vide F.I.R. No. 134 by Sher Azam Khan accused‑appellant and F.I.R. No. 135 by Gul Qadam Jan complainant (P.W.5), with an interval of only 10 minutes. The plea of delay in lodging the F.I.R. No. 135 by Gul Oadam Jan (P.W.5) is, therefore, immaterial, because if the accused party could not reach the police station earlier, how could they expect the deceased party when they had lost a precious life and the complainant was also injured keeping in view making arrangements for Charpai and transportation for the deceased. 1n the cross‑F.I.R. the presence of Gul Qadam Jan complainant (P.W.5) is admitted on the spot as well as the factum of death of the deceased Imam Jan with fire‑shots at that time on the spot of occurrence. Sher Azam appellant has stuck to his deposition even in the statement recorded by him under section 342, Cr.P.C. as also his statement on oath. The sole point for determination in the case in hand, therefore, would be whether the prosecution story rings true or defence version is more plausible. We feel that there is some suppression of material facts by either side and both the B parties have not come to the Court with clean hands. In such a situation, we have to sift the grain from the chaff in order to avoid injustice to both the sides.

12. According to Doctor Ihsanullah Khan (P.W.4), the lacerated wound on the head of the deceased was caused with blunt means, but Gul Oadam Jan complainant (P.W.5) neither in his first information report nor in his statement in Court attributed any blunt weapon to either of the accused‑appellants nor he had explained as to how the deceased received these injuries. Similarly, Sher Azam, accused‑appellant, as per report of the same doctor incorporated in the injury sheet (Exh.P.D.) had received two injuries, one incised wound and the other lacerated wound but Gul Qadam Jan (P.W.5) is ignorant about the same. Likewise, the complainant Gul Oadam Jan himself has injuries as a result of teeth bite but he does not specifically narrate the circumstances under which he received the same and that by which particular accused these injuries were caused to him, either in the F.I.R. or in the statement in Court. Sher Azam accused appellant is sailing in the same boat inasmuch as he also is silent to explain as to how he came by the incised wound and the lacerated wound. He simply says in his report before the police that after the firing by Gul Qadam Jan and Sard Ali Jan, which instead of hitting him, hit their brother Imam Jan (deceased), he found himself injured as a result of the said firing. All this goes to prove that both the parties have suppressed the origin of the right. We gather from the circumstances of the case that prior to the actual firing resulting in the death of the deceased, there was a free fight between the parties over the construction of the `Brid' (Banna) in which both the parties sustained injuries and in this view of the matter, we are proceeding to analyse the evidence in order to fix responsibility over each individual accused for the act of each one of them. In adopting this course, we are supported by the dictum laid down by their Lordships of the Supreme Court in the case of Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 SC 502, wherein it was held that:‑ "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an `adversary proceeding' to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances."

13. Taking the case of Sher Azam accused‑appellant first, it is alleged by the prosecution that he came out of his house armed with a D.B. shotgun and fired at the deceased. There appears to be no pellet injury on the person of the deceased, because one of the injuries is lacerated caused by blunt means according to the opinion of the Doctor (P.W.4), while the other two are entrance and exit wound which are the result of the rifle shot. As stated earlier, Sher Azam accuse appellant had two injuries on his person and it is nobody's case that after receipt of these injuries he rushed to his house, came out with a D.B. shotgun and fired at the deceased. These injuries cannot be self‑inflicted and the presumption which can be drawn is that these injuries were sustained by him prior to the firing at the deceased. In this view of the matter, the statement of eye‑witness, namely, Qadam Jan (P.W.5) is not corroborated by the circumstances of the case and relying on the dictum of this Court laid in a D.B. judgment in the case of Khanaa Khan and others v. The State as P L D 1966 (W.P.) Pesh. 232, we hold that the charge against Sher Azam, accused‑appellant No.1 for causing injuries to Imam E Jan, deceased by firing at him with a D.B. shotgun is not free from doubt and while extending him the benefit of doubt, we acquit him of the said charge.

14. As regards the charge of simple injuries caused to Gul Oadam Jan complainant (P.W.5), the theory advanced by him is equally inconceivable. inasmuch as according to him after his brother Imam Jan deceased was hit by the fire‑shots of Sher Azam and Anar Khan accused‑appellants, they alongwith their co‑accused Mir Zalam and Sadrul Shahecd alias Sadrey appellants caught hold of him and delivered him kicks and fist blows. He was the real brother of the deceased and the accused‑appellants were supposed to be equally aggrieved against him and there is no plausible explanation as to why they intended to cause r. simple injuries to him particularly when they were duly armed with deadly r weapons. This version of his is also belied by the medical evidence, according to which the injuries caused to him were the result of teeth bite of one person. Gul Qadam Jan complainant (P.W.5) has not attributed the bite injuries specifically to any one of the appellants. Consequently none of the appellants can be fixed with the responsibility for the simple injuries caused to Gul Oadam Jan complainani (P.W.5). The prosecution has thus failed to bring charge home to any of the appellants on this count and while giving the benefit of doubt to all the four appellants, we exonerate all of them from the charge under section 323/34, P.P.C. and acquit them.

15. Reverting to the case of Anar Khan, accused‑appellant, we find the charge levelled against him under section 302/34, P.P.C. is distinguishable from I that of his other co‑accused. At the very outset he has been shown m possession of a .11 shot rifle and a fire‑shot at the deceased with the same rifle has been attributed to him. According to doctor Ihsanullah Khan (P.W.4), the deceased sustained one fire‑arm inlet wound 1/4" x 1/4" on the left side of scalp 11" posterior to wound No.1 with a corresponding outlet wound, shown by him as injuries Nos. 4 and 5 in the post‑mortem report. Learned counsel appearing on his behalf in their detailed arguments while trying to exonerate Sher Azam.of the charge of murder brought against him, definitely asserted these two injuries to be the result of fire‑shots fired from a rifle. Anar Khan accused‑appellant made himself scarce after the occurrence for a sufficiently long time till he was arrested on 6‑8‑1984. No doubt he surrendered during the tune when the proceedings under section 87/88 had not yet been finalized, but all the same, his avoiding arrest for considerable time can only point to his guilty conscience particularly when his alleged lack of knowledge of the occurrence cannot be accepted, in view of the arrest of his own brother Sher Azam for the instant crime and the factum of the houses and lands of the parties being situated close to the venue of occurrence as shown in the site plan Exh.P.B. No independent witness has been produced by the prosecution in this context, but as the spot is surrounded by the houses and lands of both the parties only, the version of the complainant Gul Qadam Jan, that nobody from the general public was present near about the scene of occurrence, stands to reason and insistence on the production of an independent witness cannot be made in the circumstances of the case in hand. We are convinced about the guilt of Anar Khan, accused‑appellant, so far as the H charge against him under section 302, P.P.C. for causing the death of Imam Jan is concerned. We accordingly maintain his conviction and sentences there under and dismiss his appeal.

16. In view of the above discussion, the award of lesser penalty provided under the law against Anar Khan appellant was justified in the peculiar circumstances of this case and does not call for enhancement. Resultantly, the criminal revision filed by the complainant being without any merit is also dismissed. N.H.Q./867/P Revision dismissed.