1981 PLP 1153 (SCMR)

Leave to appeal was granted to re-appraise the evidence in the interest of justice. On behalf of the appellants, Mr. S. M. Zafar submitted that it was blind murder and none of the witnesses, who profess to have seen the incident, were there. As for Muhammad Khan, his presence too was doubtful as there was no authentic evidence to substantiate that any one else had heard the Fajar Azan which was the prime reason for his exit from the house for offering prayer in the mosque which fell on the way to the house of the deceased. The learned counsel further submitted that the appellants were implicated on suspicion although the real culprit was Muhammad Sher, the son of the deceased, who had got him murdered by the hired assassins, namely, Jahan Khan and Sultan, who were joined id the investigation as suspects. This was because the deceased had married Mst. Meena, a lady outside his Bradri over which there was a rift in the family. In this connec tion he also referred to the indifferent attitude of Muhammad Sher, in not co-operating with the investigating officer by his failure to produce the copies of the revenue record, which were, however, furnished by the Patwari. He further invited our attention to Exh. D. D., an entry in the station diary wherein Ibrahim Khalid, the Investigating Officer, had not recorded the substance of the F. I. R. highlighting the names of the accused, the witnesses and the fire-arms used before leaving the police station for investigation. This, according to him, was because the assailants, till then, were not known and so also the witnesses. Further, this equally suggested that the F. I. R. was recorded at the spot wherein the names of the appellants figured and so also the names of the witnesses and the weapons used. 1n support of these submissions, the learned counsel relied on improba bilities and the discrepancies inter se in the evidence of these witnesses and its conflict with the medical evidence. It would be worthwhile first to resolve the controversy in regard to the conflict of their testimony with the medical evidence. According to Dr. Muhammad Afzal Mian, who performed the post-mortem examination, injury No. 1 on the back of the deceased was caused from a distance of less than 4 feet and it was the result of one shot. Sher Muhammad had spoken about it saying that it was Hayat Muhammad who had fired this shot after placing his gun near his body. He had seen him firing from a distance of 8/2 karams in the light of the moon. Therefore, in estimating as to how close the fire-arm was to the body of the deceased, there could have been a variation of 2 to 3 feet having regard to the place where he stood and the angle of his sight vis-a-vis Hayat. Nonetheless, gun was fired from a close distance to produce scorching around the margins of the wound, which substantially corroborated his version. The other witness, Mian Muhammad, who was awake also saw Hayat Muhammad "standing on the east and and firing at the deceased, from his back". He, however, did not give the distance and no question was put to him to elicit it. However, after the shots were fired, it was stated by him, that they were about 3/4 karams away from them as he and Sher Muhammad tried to apprehend them. This would also in a way support the statement of Sher Muhammad as to how close Hayat Muhammad would have been while firing at the deceased. It further appears from the cross-examination of Dr. Muhammad Afzal Mian that an attempt was made to show that the version of Sher Muhammad was not correct, for, in that event the gun powder would have passed through the wound without causing any scorching or tattooing. All that Sher Muhammad had stated was his own impression and factually he could have erred. Accordingly, nothing would turn on it. The next submission was that in fact three shots were fired and not two which belied the ocular testimony. In this connection; the learned counsel referred us to injury No. 2, which was on the back and on the inner lower right upper arm It appears from the evidence that no sooner the deceased received the first shot, he got up from the cot and it was then that the second shot was fired by Khan Muhammad. It is eminently plausible that the deceased must have raised his right hand to feel the exit wound on his chest and got injured from the pellets of the second shot. Therefore, it is not possible to hold that the third shot was in fact fired. Now, as to the presence of the eye-witnesses, namely, Sher Muhammad, P. W. 8, and Mian Muhammad, P. W. 9, we do not feel any hesitation in holding that tbey had witnessed the occurrence. Sher Muhammad was the servant of the deceased and his presence in the house could not have been denied in the. Context of the fact that the appellants failed to substantiate the plea that he was at that time watering the field. In this connection no attempt was made to show that it was his turn of water at that particular time which could have explained his absence. Similarly, the presence of Mian Muhammad could not be denied for this reason. Mian Muhammad had stated that he had come earlier to find out as to when the deceased was expected and while he was in the house, the deceased had arrived. He then chitchatted with him and came back after having his meal; and as he was about to go, the deceased stopped him. We do not find any improbability in this version for he was on friendly terms and had approached the deceased for selling 30 maunds of wheat. Besides, his brother-in-law, Havat, was a tenant of the deceased during those days and he was his permanent Beuparl. It could not, therefore, be unusual if the deceased had stopped him for the sake of company to spend the night there as his visits were occasional. Another feature which was highlighted to deny his presence was that only two cots were seen in the morning although the prosecution version was that all the three slept on three separate cots. An explanation could be had for the absence of the third cot if a pointed question had. been put to Sher Muhammad as to what happened to it in the context of the assertion of these two eye-witnesses that there were three separate cots but no attempt was made in this behalf. Besides, it is difficult to comprehend that a person of the intellect of Sher Muhammad could have coined Mian Muhammad's presence in the light of his assertion that he had taken a cigarette from him in the absence of any deliberation. Further, the presence of Sher Muhammad and Mian Muhammad is confirmed by. Muhammad khan who came to the spot with in a few minutes. If Mian Muhammad had not stayed in the house then it is difficult to believe that in the prevailing panic Sher Muhammad would have had the sense to call Mian Muhammad who lived three killas away. Again, the learned counsel, in order to justify his absence contended that Mian Muhammad had not stated in his earlier statements that Sher Muhammad had brought out three cots. This too would not deny his presence for if he had slept there, it would be on a cot. Additionally, the presence of the cots had been disclosed earlier in the F. I. R. and all that could be said is that he must have omitted to mention it inadvertently. Concluding, therefore, the presence of both Sher Muhammad and Mian Muhammad could not be doubted. As for the presence of Muhammad Khan, his version is that as he got up on bearing the Fajar Azan, he heard gun shots upon which he came out and saw the appellants escaping, along with their guns, at the crossing of the mosques on the way to the house of the deceased. Even if it be taken that the Fazar Azan was not given at that time, it cannot be doubted that the gun shots would not have awakened him for he lived 40 karams away from the mosque and about 200 karams from the house of the deceased. He is not connected with the deceased in any manner nor has enmity with the appellants and we see no reason why he would have given a false statement. It was suggested in his evidence that the house of the appellants was 60 paces away from the house of the deiced; and it would have been natural for them to go to their house rather than to follow a different course. This again is neither here nor there for it is difficult to gauge what must have passed in the minds of the appellants but one thing is clear that the intuition at that time would be to make themselves scarce. It was, therefore, that they had taken that route. It was again brought out in cross-examination that he had not stated to Sher Muhammad and Mian Muhammad that he had seen the appellants running away but this too is of no consequence as this fact is mentioned in the F. I. R. which could not have been so mentioned unless Muhammad Khan had disclosed it to the P. Ws. Further, he has not been confronted with his statement and, therefore, it cannot be said that this was not his version at that time. We have found nothing in his evidence to discredit it. Accordingly, his presence cannot also be denied. It was next contended that the assailants could not have fired from the street as walls surrounded the platform. But this contention is also of no merit as Mian, Muhammad stated that the platform was enclosed on two sides, namely, east and west, by a wall, 6 inches high. Draftsman had not spoken that a wall enclosed the platform while the Investigating Officer had given the height of the wall as 2J feet. If there had existed a wall of this height, the draftsman would have certainly mentioned it. Accordingly, the statement of Mian Muhammad must be regarded as correct as the wall of that height is hardly noticeable and further it could not be regarded as an obstacle if the appellants had fired from the street the more so when the deceased's cot was on the edge of the platform and the appellants could have taken the positions as disclosed by the witnesses. In regard to the submission that the substance of the F. I. R. was not mentioned in the Daily Diary in accordance with Police Rule 24.1,we may here point out that the F. I. R. and the entry in the Daily Diary were recorded almost at the same time ; and in the entry there is a mention to the effect that the F. I. R. had been lodged which, in our view, was sufficient compliance with the Rule as the names of the witnesses, so also of the appellants and the weapons used were mentioned therein. There is also no material from which it can be gathered that the F.

1. R. Was not lodged at that time, but it was recorded at the spot after investigation. However, as against it in the entry in the Daily Diary the fact that the. F. I. R. had been lodged is mentioned. The learned counsel was not able to point out that this entry was not made at the time so stated and, therefore, this submission also has no value. In regard to the motive, the learned counsel contended that the appellants had gained a profit of Rs: 10,000 and, therefore, they could not have been motivated to kill the deceased for the reason that the deceased had not fulfilled the promise to procure an equivalent area of. Land for them, in Chak No. 383/W. P. It was, on the other hand, suggested that Muhammad Sher, his son, had a more subtle grievance to finish him off as he had married a woman belonging to weavers stock which was further evident from his indifferent conduct and the inclusion of Jahan Khan and Sultan in the investigation apparently as suspects. From the evidence on record no material was elicited to show the involvement of Muhammad Sher and the other two. Equally there is no explanation of the Investi gating Officer as to why they were treated as suspects. Again, if any witness was examined by the Police to show their complicity then the Investigating, Officer should have been cross-examined to highlight it-in which case the appellants should have examined that witness in defence. Having not done that, the submission is conjectural for the eye-witnesses and Muhammad Khan have unequivocally implicated them, as their identity was not in doubt. We may point out that they were known to the witnesses and-there could not have been any difficulty in identifying them in the light of full moon. Further, their names were disclosed in the F. I. R. which was promptly lodged. In the circumstances, it is not possible to believe that Sher Muhammad would have given out their names in" the F. I. R. on a mere suspicion for the alleged motive imputed against them. It is further in the evidence that there was no rift in the family over the deceased's second marriage and the deceased had been occasionally visiting, the house which he would not have otherwise dared to in case his son had adopted an unseemly attitude. Besides, he is a law graduate and on the fateful day, he had gone to Lahore to obtain a license for carrying on his legal practice. There is nothing in the evidence to show that this was a camouflage but the real intent was to be away pursuant to any evil design. Accordingly, the motive imputed could not be minimised on the plane of the gain which the appellants had in the transaction as the pursuit of land for its obvious benefits cannot be ignored and this could be the only reason to motivate the appellants to commit the crime, in the absence of any plausible suggestion. Sher Muhammad therefore, rightly highlighted it while lodging the F. I. R. As to the recovery of the gun from Hayat Muhammad, it was not proved to be the crime weapon and, therefore, it had no evidential value. The ocular evidence, however, suffices to implicate him in the crime and so also Khan Muhammad. The trial Court, upon its evaluation of the evidence, held: "The statements of the above three witnesses do not suffer from a doubt which is usually considered inherent in the statement of an interested and partisan witness. Since the statements given by them corroborates each other and are further supported by the medical evidence, I find no valid reason to discard them." Similarly, the High Court held that Sher Muhammad and Mian Muhammad had witnessed the occurrence and were rightly believed by the trial Court. In regard to Muhammad Khan, the High Court expressed that he was "an independent and disinterested witness and further that there was nothing in his evidence to discredit his veracity. . He was, therefore, rightly believed by the trial Court. The courts below further accepted the motive as one prompting the appellants to commit the murder. The result is that, for the reasons hereinbefore mentioned, there is no force in this appeal, which is dismissed. Appeal dismissed.