P L D 1996 Lahore 360 (PLP)

SH. MUHAMMAD ZUBAIR, J.‑‑This Criminal Appeal filed by Muhammad Khan and Muhammad Ashfaq is directed against the judgment dated 1‑12‑1991 of the learned Sessions Judge, Chakwal, whereby he convicted them under section 302/34, P.P.C. for the murder of Muhammad Bashir and sentenced them to suffer death plus fine of Rs.50,000 each or in default to undergo further R.I. for two years, with the direction that the fine, if recovered, half of it be paid to the legal heirs of the deceased. By the same judgment the third accused Muhammad Safdar was acquitted. The learned Sessions Judge has also referred the case to this Court under section 374, Cr.P.C., for confirmation of death sentence of the appellants. Both these matters are being disposed of by a single judgment.

2. The occurrence took place on 19‑2‑1989 at 8‑00 am. Statement Exh.PD of lkrarn Hussain (P.W.11) was recorded by Ghulani Hussain SA. (P.W.15) at 9‑30 a.m. at Dhatta Kot Chowk. Formal F.I.R. Exh.PD/l was recorded by Altaf Hussain M.H.C. (P.W.6) at Police Station Choa Saidan Shaih on the same day at 10‑00 a.m. I As for the motive it is alleged that the deceased was an accused in the murder case of Karam Ilahi and was on bail. In order to take revenge of the said murder, the appellants and their co‑accused in furtherance of their common intention had murdered Muhammad Bashir.

3. As per statement Exh.PD of Ikrani Hussain P.W.11, the prosecuti ' on case is that on the fateful day, the complainant alongwith Muhammad younis Pi.W.5, Altaf Hussain (given up witness) was present at Dhatta Kot Chowk for going to Chakwal in connection with the criminal case of Muhammad Bashir. 7bey were waiting for the Bus at the said Chowk when at about 8‑00 a.m. Muhammad Khan appellant armed with .12 bore gun, Muhammad Ashfaq appellant‑ with rifle, Mirza Khan (since dead) with revolver and Muhammad Safdar (since acquitted) with rifle, appeared at the scene from the side of village Arrar. Mirza Khan raised Lalkara that Muhammad Bashir should not go alive and should be taught a lesson for conspiring for the murder of Karam Ilahi. Muhammad Khan appellant fired with his .12 bore gun which hit Muhammad Bashir on the left side of his ribs near the flank. Simultaneously Muhammad Ashfaq appellant fired with his rifle which hit Muhammad Bashir on his head. Muhammad Safdar and Mirza Khan started firing in the air. In the fallen condition, Muhammad Ashfaq gave a butt blow on the right side of head of Muhammad Bashir. On the hue and cry of the P.Ws., the assailants decamped towards village Arra,r.. Muhammad Bashir succumbed to the injuries at the spot.'.

4. Ghulain Hassin S.I. (P.W.15) reached the spot, prepared injury statement Exh.PQ and inquest report Exh.PR and despatched the dead body to the mortuary for post‑martem examination. He secured blood‑stained earth from the spot vide memo. Exh. PM. He got prepared site plan Exh. PB and Exh. PB/ I by Muhammad 'Lehrasap Patwari (P.W.3). Muhammad Yousuf, Constable P ' W.8) produced the last worn clothes of the deceased, which were taken into possession vide memo. E ' PE. On 25‑2‑1989, he arrested Mirza Khan (since dead) and got recovered 32 bore revolver, four live cartridges and one empty. 6n 22‑"3‑1989 he obtained the appellants and the acquitted accused. On 28‑3‑1989, c4allan was submitted against Mirza Khan, whereas the appellants and the acquitted accused were declared proclaimed offenders. On 27‑5‑1989, Abdul Majid, Inspector P.W. 10 arrested the appellants at Magliial Chowk. On 31‑5‑1989, Muhammad Khan got recovered. 12 bore gun (P. 12) aiid Muhammad Ashfaq got recovered .7 mm Rifle P. 13, vide memos. Exh.P.I. and Exh.P.J., respectively. On 26‑12‑1989, Akhtar Hussain, Inspector (P.W.14) arrested Muhammad Safdar. On 4‑1‑1990, he got recovered 7 min rifle P. I and five live cartridges from his house, which were secured vide memo. Exh.PC. After completing legal formalities, the challan was submitted in the Court.

5. Dr. Ishtiaq Ahmad P.W.2 conducted the post‑mortem examination on the dead body of Muhammad Bashir on 19‑2‑1989 at 2‑30 p.m. and found three abrasions, bleeding from both nostrils, apart from the following two injuries which were fatal individually as well as collectively and were sufficient to cause death in the ordinary course of nature: (i)A group, of 6 pellet wounds each pellet wound was oblique in position, in an area of 7" x 7", each pellet wound was 2‑1/2 x 1/8 x 1/8", chest cavity deep with one centre fire‑arm abrasion, 1‑1/8" x 3/4" in the centre of the group of six pellet wounds. The centre abrasion was due to 'Gatta' of the cartridge, on outer 'side of lower part of left chest and upper abdomen. The centre of the wound was present, 6" blow and behind left nipple. The direction of the wounds was forward to the right and horizontal. Margins were inverted. It was an entry wound, no blackening and scorching was present. , (2) A fire‑arm wound, 3 " long, anteriorly it was 3/8 " wide, margins were inverted, posteriorly the wound was zig‑zag, 3/4" and everted. Skull underneath was fractured and shattered and shattered bone was everted. It was directed backward to the right and slightly upward and outwards. The anterior part of the wound was entry wound and the posterior part was exit. No blackening and scorching was present. The entry wound was situated on right side and back of the scalp, 2‑1/4" above and behind the top of the root of the right ear. 6% The appellants when examined under section 342,, Cr.P.C., denied the prosecution allegations and professed innocence. They stated that they did not abscond and were residing in Karachi and appeared before the police voluntarily after coming to know , about their involvement in the case. Recovery of incriminating weapons was also denied. They further stated that they had been involved in this case on account of previous enmity and suspicion. Muhammad Bashir deceased had a number of enemies in the area ,and long‑standing enmity with the number of people in the area. He was put to death during the small hours of morning and the occurrence was not witnessed by any of the so‑called eye‑witnesses. They did not make statements under section 340(2), Cr.P.C. However, they examined Altaf Hussain, A.S.I. as D.W.1 to prove the copies of F.I.R. No. 31, dated 18‑9‑1966 (Exh.DD), F.I.R., No.33, dated 10‑8‑1968 (Exh.DE), F.I.R. No. 5, dated 23‑3‑1980 (Exh.DF), F.I.R. No.44, dated 24‑7‑1983 (Exh.DG),' F.I.R. No.62, dated 3‑12‑1983 (Exh.DH) and F.I.R. No.4, dated 23‑1‑1984 (Exh.DI).

7. The learned trial Judge disbelieved the recovery qua Muhammad Safdar and also the motive. Accordingly, he gave benefit of doubt to him and acquitted him, whereas in the case of the appellants he believed the recoveries at their instance, the motive and the ocular version corroborated by the medical evidence and convicted and sentenced them as stated above.

8. The learned counsel for the appellants vigorously urged that the F.I.R. was recorded after preliminary investigation, hence no credibility is attached to this dubious document; that the occurrence took place in the darkness of night and none of the eye‑witnesses saw it. Both the eye‑witnesses are deposing against the appellants on account of enmity which stood proved on the record. The ocular evidence is contradictory to the medical evidence; the presence of the eye‑witnesses is neither proved from the site plan nor from the post‑mortem report, as some strangers, namely, Khushi Muhammid resident of Khairpur and Ghaus Muhammad resident of Narri, Tehsil and District Khushab identified the dead body of Muhammad Bashir deceased before Dr. Islitiaq Ahmad (t P.W.2, who conducted the post‑mortem examination w I)M.Q. Hospital, Chakwal, The learned trial Judge erred in law while treating the recovery of .12 bore gun and rifle from Muhammad Khan and Muhammad Ashfaq, respectively, as corroborative piece of evidence, as no crime empty was found at the spot and that the learned trial Judge passed the impugned judgment treating the abscondence of the appellants for a considerable time as corroborative piece of evidence which is contrary to the dictum of their Lordships of the Supreme Court; hence the prosecution has failed to prove its case against the beyond reasonable doubt, In the end, learned counsel contended that if at all the prosecution case is presumed to be proved, still death sentence imposed upon Muhammad Khan appellant needs consideration as he acted under the influence of his father Mirza Khan, who died during the pendency of the trial. 9 , . The learned counsel for the State assisted by learned counsel for the complainant submitted that statement Exh.PD was recorded immediately after the occurrence, the occurrence took place in the day time which eliminates the chances of false involvement of the accused. The ocular evidence qua the appellants is getting ample corroboration from the medical evidence. The acquittal of Muhammad Saftlar co‑accused has not impaired the intrinsic value of the ocular evidence, as he was acquitted by way of abundant caution keeping in view the principles of safe administration of justice.

10. We have perused the record of the case minutely with the able assistance of the learned counsel for the parties and have also examined their respective submissions, mentioned above, There is no material on the record to substantiate the contention of the learned counsel that the F.I.R. was recorded after preliminary investigation. On the contrary, Ghulam Hassan, S.I. P.W.15 categorically deposed that after learning about the incident he rushed to the spot on the official vehicle and recorded statement Exh.P.D. of Ikrarn Hussain P.W, I I at 9‑30 a.m. at the spot As Ikrarn Hussain made statement Exh.PD immediately after the occurrence which took place at 8‑00 a.m., his presence is established by this document Both the complainant as well as Muhammad Younus P.W.5 gave very reasonable, convincing and, plausible explanation to their presence at the scene of occurrence, as they had accompanied the deceased, who was going to attend the Court at Chakwal in connection with a criminal case. No doubt, Muhammad Younus P.W.5 is the brother‑in‑law whereas Ikrani Hussain P.W.11 is the maternal cousin of the deceased, but there is plethora of case‑law on the subject that relationship per se is no ground to disbelieve the evidence of the eye‑witnesses, unless and until it is shown that they had strong motive to falsely implicate the accused persons in the case or their presence at the time of occurrence at the spot is not proved beyond reasonable doubt. Reference in this connection be made to PLD 1976 SC 53., The learned trial Judge rightly observed that it is not obligatory that only eye witnesses should identify the dead body at the mortuary. On the other hand, any person who knows the deceased is competent to identify his dead body before the doctor. As both the eye‑witnesses were unarmed due to the imposition of section 144, Cr.P.C. on the day of occurrence, hence they were not in a position to rescue the deceased as they apprehended danger to their lives, which is natural instinct of all human beings. The learned defence counsel placing reliance on the medical evidence pointed out that in the F.I.R. Exh.PD/1 it is stated that Muhammad Ashfaq accused had inflicted the rifle butt on the head of the deceased whereas in the Court he omitted to mention this fact in order to bring his evidence in line with the medical evidence. In this connection the learned trial Judge rightly relied on PLD 1977 SC 529, wherein it was held that an initial report need not necessarily and in fact would seldom contain such minute details. Learned counsel also contended that injury on the knee of the deceased, as mentioned in the post mortem report is not disclosed in the F.I.R. Exh.PD/1 nor in the statements of the eye‑wintesses. It may be observed that in significant and minor discrepancies do occur even in the evidence of most truthful witnesses due to lapse of time and difference of perception of different persons. Even that injury is only an abrasion, 2" x 7/8", on front of right knee‑joint, in view of the post‑mortem report Exh.P. A. The learned counsel for the appellants laid much stress on this aspect of the case that according to the doctor, the deceased might have died at 5‑00 a.m. In the month of February, coupled with this fact that large intestines of the deceased were healthy and full with stools. We find no force in this contention as direct evidence cannot be discarded in view of the medical evidence which is always based upon guess work. Even the doctor gave two different statements regarding the time of death and post‑mortem. At page 20 of the paper book, he deposed that probable time that elapsed between death and post‑mortem examination was six to eight hours, whereas at page 21 of the paper book he in cross‑examination stated: "It is correct that death could have been caused at 5‑00 a.m." without giving any cogent reason. There is no direct evidence available on the record about the taking of breakfast and passing of stools by the deceased, hence it would be dangerous to disbelieve the ocular version on the basis of conjectures and guess work. It is an established principle of law that site plan is not a substantive piece of evidence and it cannot be used to contradict or discredit the eye‑witness account. A perusal of site plan Exh.PB shows that name of Ikram Husssain . _ P. W. I I is not mentioned therein as one of the eye‑witnesses, but this omission is not fatal to the prosecution case, because we have already observed the presence of this witness at the time of the incident at the spot was natural because he was accompanying the deceased to Chakwal. PLD 1980 SC 317 is referred with advantage. No doubt, the deceased was a man of criminal disposition, but this fact alone is not sufficient to disbelieve the ocular account when their presence at the spot is proved beyond reasonable doubt. Both the eye‑witnesses were subjected to lengthy cross‑examination, but nothing favourable to the defence could be elicited from them. On all material and important points, their evidence is consistent and is being fortified by the medical evidence. Even both these eye witnesses had no direct enmity against the appellants which could be the motive for their false implication. The role played by each of the appellants is being supported by the medical evidence. The learned trial Judge was competent to get some corroboration from the recovery of weapons at the instance ‑ of the appellants in the absence of the crime empties as that corroboration would be strong enough as it would have been in the case of matching of crime empties with the weapons. Even if, for the sake of discussion the abscondence of the appellants is not taken into consideration, still the prosecution has proved its case beyond reasonable doubt so far as the culpability of the appellants is concerned. The corroboration is the rule of prudence and not of jurisprudence. There are cases where the Courts keeping in view the quality ocular evidence have convicted the accused persons without looking for any corroboration.

12. We have given our anxious consideration to this aspect of the case whether the sentence of death awarded to, the appellants needs consideration or not. We find that the appellants committed the diabolic, gruesome murder of the deceased on account of motive mentioned in the F.I.R. itself, which stood proved from the direct and documentary evidence; hence the learned trial Judge rightly imposed the normal penalty of death upon the appellants, which call or no interference by this Court. Resultantly, we dismiss this appeal, maintain the conviction and sentences of the appellants and confirm their death sentence. The reference is answered in the affirmative. N.H.Q./M‑2697/L Appeal dismissed