1996 P Cr (PLP)

From perusal of record it is revealed that P.W.1 was examined on 10‑9‑1989. his cross‑examination was postponed on the request of accused. However, he was recalled and re cross‑examined on 11‑12‑1989 and he was again called for cross‑examination which concluded on 28‑6‑1993. Thus, it almost took more than 3 years to conclude cross‑examination of this witness. Similarly P.W.2 Amjad, a boy of tender age, was examined on 5‑5‑1990 but his cross- examination was done on 20‑4‑1991. He was again recalled on 31‑10‑1991 when his cross‑examination was concluded. Likewise P.W.1 Anwar Sultana recorded her examination‑in‑chief on 2‑6‑1991 and her cross‑examination was concluded on 30‑10‑1991. In such state of affairs, minor contradictions in the statement of eye witness shall not be material, particularly so when such testimony is otherwise fully corroborated by independent witnesses as well as circumstantial evidence. In this respect reliance may be made to the observations made by Honourable Supreme Court in titled Sher Muhammad and others v. The State Criminal Appeal No. 268 of 1991. In para. 18 of the said judgment it was observed: "Article 140 of the Qanun‑e‑Shadat envisages that a witness may be contradicted with his previous statement. There is no cavil on the proposition. The question is whether certain facts which had been brought on the record by the defence himself through cross‑examination could be equated with a previous statement. A bare reading of the above said two sections of the Criminal Procedure Code and Qanun‑e- Shahadat will say no. It is not all besides, the contradictions pointed out being of minor nature would not affect the material evidence of eye witnesses. " Besides, the accused has made all efforts to prolong the case, by making vexatious applications to the High Court almost on each and every hearing which is reflected from the record and even, from observations made by the trial Judge. In this connection first observation would be sufficient to be reproduced: ‑‑ "Demeanour of the accused is hostile towards the Court. The case is referred to the Honourable High Court. Cross closed." Not only that, but the accused while cross‑examining the mother of deceased tried to provoke her by putting obscene and scandalous questions as for instance:‑‑ (1) You cut down. your lip vagina which was stitched? (2) Your naked photographs are with Lal Muhammad Kakar of Kuchalk? Now testing the ocular testimony we have found that these eye‑witnesses have corroborated each other on all material points such as time of commission of the offence, the place of incident, the manner in which incident took pack, the accused being found armed with a shot‑gun. In the circumstances minor contradictions as to who came out from the house first would be hardly material in the circumstances of the case. As far as sequence of events and the manner in which offence was committed, the testimony of these eye‑witnesses is confidence inspiring, consistent, natural and convincing. Not only that the eye‑witnesses have spoken the truth, but such truth comes out from the circumstantial evidence of recovery of a Russian Shot Gun licensed in the name of accused, recovery of cock/pad of the catridge used, from the place of incident. It will not be out of place here to mention the reasons upon which the learned trial Court did not rely on the statement of Anwar Sultana following contradictions were highlighted:‑‑ My deceased son had told me that it was 9‑30‑ a.m. when he was going on duty. Nobody told me to state timings of 9‑00 a.m. It was mentally upset therefore, some times I stated 9‑00 a.m. and some times 9‑30 a. m. ‑‑ Zahid told me that there were many catridges in your pocket. ‑‑ I do not remember what was the colour of your clothes of the time of incident. The accused was wearing Kamiz and Shalwar at that time. ‑‑ I stated to Tehsildar that I told my second son to call Saifullah to fetch Suzuki of Maskeen (confronted not so record). ‑

Confronted my son Arshad Ali was seriously injured, my neighbourer Saifullah under semi‑consciousness took him to hospital in a Suzuki. ‑‑ I stated to Tehsildar that sister of accused told me and my son to marry (confronted not so recorded). The sister of the accused told that to marry my deceased's son to the sister of the accused. ‑‑ I stated so to Tehsildar (confronted not so record) your sister did not say to deceased for marry. You did not say to me for marriage. ‑‑ I did not say to Tehsildar that you directly compelled me to marry. I and my son Zahid went to Tehsildar to give statement. It is correct that Akhtar lqbal Khattak was also accompanied with us at that time. You never directly teased me. it is correct that I stated before the Court that I have no trust with Arshad. There is a distance of 2,000 feet between my house and that of the accused. I cannot say how much was the distance between accused and that of my deceased son. I cannot say whether the distance of 2,000 feet, more than that or less than. I alongwith my son Amjad and Maskeen accompanied the injured to hospital. Saifullah was also accompanying us. Akhtar Khattak did not accompany me to Tehsil Office. A case was registered against me for murdering of my husband. It is correct that Arshad and my brother was also accused in the said murder case. It is not correct that subsequently I married with Iteeq‑ur‑Rehman. After the death of my son I got the house transferred in my name as I intended to sell the said house. It is correct that a suit for the recovery of fee was filed by the accused in the Court of Senior Civil Judge, Quetta. It is incorrect that my deceased son had given a statement under section 164, Cr.P.C. that I murdered his father and my husband. Similarly that statement of P.W. Amjad has been rejected for contradictions in the statements which he gave before the Tehsildar. Although Tehsildar has not recorded his statement but it was Naib‑Tehsildar who recorded his statement. It may be mentioned here that learned trial Court not only erred in law to reject a consistent statement on all material points of the 3 eye‑witnesses but he has done I so on extraneous considerations on flimsy and irrelevant grounds. We are conscious of the fact that in criminal justice benefit of doubt, if any, shall be given to the accused, but this does not entail that the Court should sit to I highlight minor contradictions ‑and to try to dislodge statement of a witness on mere technicalities. Adverting now to the testimony of P.W.5 who is related to none of the parties it may be observed that he gave a very honest statement before the Court. P.W.5 deposed that he is resident of Killi Jeo Jadeed. He lives in the same vicinity about 2 furlongs from the house of deceased. According to him incident occurred on 1‑2‑1989 at 9‑00 a.m. He came out of his house on bicycle and reached the main road. He saw deceased came out from the house and when he attempted to ride on his motor‑cycle he heard a gun‑shot fire. He, clearly saw deceased fell down. He also saw the accused came in Maidan (open place) having a gun in his hand. After 2/3 minutes accused attempted to make another fire but in the meanwhile 2 boys came out of the house of deceased and one of them caught hold of accused and the other went to the house of Saimllah he saw the injured in the lap of his mother. Saifullah shouted that his neighbour was killed by accused Wakil Sahib. Saifullah asked him to bring a vehicle to pick the injured. He alongwith Saifullah went to the house of Maskeen and reached the place of occurrence where mother of deceased was shouting that his son was killed by Panjabi Wakil who was their neighbour. The injured was brought to hospital alongwith his mother, Maskeen and Saifullah. In cross‑examination he made it clear that the deceased fell down and simultaneously boys came out of the house. His mother also came out at the same time. This independent witness fully corroborates the other ocular testimony. He corroborates the place of incident, the time of incident. He saw the accused with shot gun coming to Maidani. He saw the injured fell down. He also saw the boys coming out of the house of P.W. Zahid grappling with accused. Thus, to no stretch of imagination, it can be inferred that this eye‑witness is either interested or a chance witness. He is resident of the locality and was going to his duty. He saw the incident. It is indeed strange that learned trial Court also did not rely on this independent eye‑witness on flimsy grounds and drew conclusions which are not only incorrect but are perverse on the face of it. As for instance the first reason why the statement of this witness was not relied is given as under by the trial Court:‑‑ "Strange enough that he is stranger and the parties were not known to him but P. W .6 Dr. Abdul Sattar disclosed the name of P. W .5 Muhammad Rahim who brought the injured to civil Hospital." The learned Judge lost sight of the fact that P.W.6 Dr. Abdul Sattar who was on duty in Causality should ask the name of the person who brought the injured and the witness must have told him his name. No cross‑examination was done on this point by the defence. Thus, this was not at all a ground to discredit the statement of an eye‑witness. Secondly the ground prevailing with the trial Judge was that there are chain of authorities that delayed examination of witness by Investigating Officer was not believed. We do not know from where the learned Judge has concluded because in cross‑examination he stated that the Naib Tehsildar recorded his statement only after 3 days. In the peculiar circumstance; of the case when the information was firstly given to police and then handed over to Tehsildar of Naib‑Tehsildar, this much delay does not render statement of this witness and particularly so when the accused died and the Naib‑Tehsilda was busy in all other formalities. From the above discussion we unhesitatingly hold that the prosecution, through ocular. testimony successfully brought home the charge against the accused. However, it was argued by respondent/accused that the ocular version is contradicted by medical testimony, therefore, it should be altogether ignored. Reliance was placed on the following authorities:‑‑ (i) 1978 PCr. LJ 670, (ii) PLD 1993 Kar. 347, (iii) PLD 1988 Kar.

521. Astonishingly, the learned trial judge while elaborating this argument has gone astray because he indulged in elaborating difference between shot‑gun and gunshot in very detail which were not required at all. We failed to reconcile ourselves that there was at all any contradiction in the medical testimony and Ocular version. In cross‑examination P.W.6 Abdul Sattar stated that the injuries mentioned at Serial Nos.2 and 3 are quite opposite. Furthermore, these two injuries are by two different shots. Thus, statement of the doctor has been given a wrong interpretation by the trial Court and undue importance has been given to this contradiction. We have already reproduced 3 injuries received by the deceased. In fact Injury No. l and injury No.3 both are on backside. So also injury No. l is on scapula, i.e. flat triangular bone in the back of the shoulder; whereas injury No.3 was gun shot entrance wound on lumbar region at the level of mid axillary line, i.e. the part of the back between thorax and pelvis and injury No.2 on right side of chest medial of two right nipple, i.e. pertaining to the middle line of the body or structure. Although in the first glance, it appears that fires were made from two different directions but from close scrutiny it becomes clear that all the wounds were as a result of one fire of a shot‑gun with several pellets. If we read the statement of the injured and statement of P. W,5 this dilemma would be resolved. He stated as under:‑‑ Similarly P.W.5 Muhammad Rahim stated as under:‑‑ It is thus clear that the deceased was fired upon by the accused when he was on his motor‑cycle. At the same time the accused had loudly asked him to stop and he simultaneously fired with a shot‑gun. it is known to us all that the catridge of shot gun had many pellets. The deceased must have responded to the call and received all the pellets on right side of his body, even on the right nipple when he must have fully turned, therefore, this dilemma of one wound on the right nipple, that too on the right side, does not suggest that firing was made on him from two sides. Even otherwise in the circumstances of the case and evidence brought on record the presumption that accused must have been fired from two directions is hypothetical and baseless. The consequence of the wounds suggests that injury No.3 was caused and then injury No.1 and when he instantaneously turned to see the accused, he received injury on the chest. As to the size of shot doctor is not the Expert. He could depose only about injuries and not size of shots. Injuries may differ in size of the same shot if the angle is changed. Furthermore, no shots were taken into possession or taken out of body of the deceased, therefore, to say that those differ in size is a hypothesis without any basis. Besides, in case of Saeedullah Khan v. The State reported in 1986 SCMR 1023 the Honourable Supreme Court observed on page 1031 as under:‑‑ "After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed. So far as Mueen Badshah is concerned, his presence at the scene of occurrence is corroborated by the fact that he was also injured with the fire weapon and it is difficult to hold that he was not present at the scene of occurrence. In the circumstances of this case when he was being killed by the successive shots which were being fired at him, it is not expected from him to describe with exactitude the details of the manner in which the deceased was injured, however, his testimony that it was the accused who fired at the deceased cannot be rejected on that account. Similarly the complainant whose close relation was being attempted to be murdered in his presence, must be looking at the awful scene enacted in his presence with great amount of tension and confusion about the fate of the victim. Having regard to these circumstances the contradiction in the F.I.R. and the police version with the evidence in Court seems to pale into insignificance. As observed by the High Court, in the extract reproduced above, there can be no doubt about the presence of these witnesses at the time of occurrence and their testimony fully implicates the appellant." Keeping the ratio decidendi of the above case we are of the opinion that the medical evidence does not contradict the ocular version and we cannot reject the ocular version on this ground, alone. Another important piece of evidence is the dying declaration. It has come on record through testimony of P.W.3 and P.W.5 that the injured was shifted to hospital in the Suzuki of Maskeen. The doctor P. W.6 informed the police as it was a lego‑medical case. The Sub‑Inspector, Sariab Police Station reached hospital and then proceeded to inspect the scene of occurrence. He arrested the accused alongwith the gun and obtained cock/pad but found that the place of occurrence was outside his territorial jurisdiction and was in the jurisdiction of Tehsildar, Quetta. He, therefore, informed the Tehsildar, Quetta who assigned investigation to Naib‑Tehsildar. He came to the hospital and recorded statement of the injured. The injured stated that accused and they are neighbours. He was arrested in case of murder of his father and while in jail, he engaged Sheikh Abdul Hameed. Sheikh Abdul Hameed was paid a sum of Rs.30,000 as fee, but despite that he always .used to demand for payment of Rs.30,000 more. Furthermore, he asked him to marry his sister, on refusal he used to extend threats to him. On 1‑2‑1989 in the morning at about 9‑30 a.m. when he came out of his house and when he was on motor‑cycle, the accused came out of his house and was having a shot‑gun in his hand and asked him to stop. Simultaneously, he fired as a result of which the injured received injuries. He made an attempt to reload his gun but his younger brother Zahid grappled with him. His mother also was present there and there neighbour Saifullah brought his Suzuki and he was shifted to hospital. . The dying declaration was challenged by the accused on the ground that it has been recorded in presence of the mother and brother and there is event likelihood that they have tutored the injured against the accused. Reliance was placed on PLD 1970 SC

13. We have perused the judgment written by Mr. Justice Sajjad Ahmed Jan (as he then was) and while discussing section 32 of Evidence Act read with section 302, P.P.C. following observations were made in respect of dying declaration:‑‑ "The dying declaration of the deceased have a degree of sanctity under the law, being the statement of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundance affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence whether it is the statement of a witness or the statement of a person who is dead, is essentially an' exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environment and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons alongwith the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age old habits and deep rooted rancours and enmities. " Another case relied upon was 1994 SCMR 1852. In this case the Honourable Supreme Court has observed that for proper evaluation of the dying declaration the surrounding circumstances in which the same were made and the contents thereof have to be kept in view. However a specific observation was made on page 1855 which may be beneficial for our purpose, "To impart veracity to a dying declaration, it is necessary that the declarant should be free from external influence and not crowded around by unauthorized persons while making the statement. The doctor admits that 5 or 6 persons were sitting around the deceased when she made the declaration. The record before us does not indicate that necessary steps were taken that no influence was brought about on the deceased." In the instant case when Naib‑Tehsildar went to the hospital to record statement of the injured at that time his mother Anwar Sultana and another person namely Saifullah as well as Akhtar Khattak were present. The question arises whether steps were taken that no influence was brought about on the deceased while giving statement. It may be noted that when the injured received gun shot injuries, his mother took him into her lap and obviously she could not leave the company of her son who was injured. P.W. Saifullah's presence is a natural because he was the neighbour who arranged for a vehicle to shift the injured to hospital. However, as far as Akhtar Khattak is concerned he is a Police Officer having family relations with the deceased party. He had no motive to influence the injured or to wrongly implicate the present accused. The dying declaration finds corroboration from the recovery of shot gun, licence in the name of the accused, the statements of the eye‑witnesses and medical evidence that the deceased was fired at with a shot gun. There was no suggestion put to the doctor that the accused was not in his senses, when his statement was recorded. P.W.5 Rahim Baloch testified about the incident and his statement also corroborates the dying declaration. Although in law no bar has been imposed to the manner in which a dying declaration is recorded nor there is any provision suggesting that the same would be inadmissible in evidence if the declaration is made in presence of relations or other persons present. But the superior Courts and the Honourable Supreme Court have laid down certain principles in order to minimise any chances of padding or false implication of an innocent person. However, facts of each case differ and it is for the Courts to take into consideration the attending circumstances and to draw conclusions from the evidence so brought on record. Thus, we find no reason to disbelieve dying declaration in the circumstances of the case. The recovery of shot gun has not been seriously challenged because it was tire accused himself who at the time of arrest produced it before P. W.7 Akram S.I. Sariab Police Station. Not only he produced gun but also the licence. However, an argument was raised that this gun, alongwith licence, were recovered during search of the house of police. No evidence was produced that police has ever made any search of the accused's house. The case of the prosecution, on the contrary, is that when S.I. Akram went to the place of occurrence, he called for the accused who came out alongwith his shot gun as well as licence. Prosecution version is more confidence inspiring on the point because there was no occasion for police to search the house when the accused had yet not been arrested. When P.W. Akram deposed about the recovery of shot gun, catridge and licence from the accused, he was not at all suggested by the accused that the gun had been recovered during search of the house. Be that as it may the shot gun recovered belongs to the accused as it is licensed in his name. Another objection raised by the accused was that the shot gun has not been sent to ballistic expert, therefore, its recovery is of no consequence. It may be noted that this argument has no force because empty catridge has not been found and Investigating Officer stated that accused informed him that he had burnt it, therefore, there was no point to send the shot gun for examination of the ballistic expert. About the remaining recoveries our attention was drawn to certain cuttings of dates on recovery memo. which we think are not material as rightly explained by Naib‑Tehsildar in his statement. In the dying declaration as well as in the statement of the eye‑witnesses it has come on record that the motive to kill was that the accused Sheikh Abdul Hameed had been engaged by the deceased who had made a payment of Rs.30,000 to him but the accused still insisted for making payment of Rs.30,

000. Also that Sheikh Abdul Hameed wanted that brother of accused should marry his sister but Arshad Ali declined. As to dispute over Rs.30,000 P.W. Akhtar Khattak, statement of injured, statement of P.W. Anwar Sultana and Zahid all corroborate each other. So much so that accused in his statement recorded under section 342, Cr.P.C. in reply to this question answered as follows:‑‑ "Factually it was not a dispute but the deceased agreed to pay the amount and a stamp paper and pronote was also written in this regard and the said amount subsequently decreed. " . Thus, the motive is proved as the deceased had not paid Rs.30,000 to the accused, who in a dubious manner obtained a pronoted as fee which is M indeed unheard off, of an Advocate. In defence the accused tried to prove that P.W. Anwar Sultana was a lady of loose character who made an attempt to commit suicide. In this regard he produced D. W .1, D. W .2 and D. W .3. All the remaining witnesses deposed about the previous murder of Qutab Khan and involvement of Anwar Sultana etc. The evidence at the most may cast some doubt on the character of Anwar Sultana but as far as Arshad Ali and Zahid, there is nothing to doubt their veracity on any ground. Besides, P.W.5 Rahim Baloch was an independent witness who fully corroborated their version. It is pertinent to mention here that learned trial Court has made an observation that Tehsildar or Naib‑Tehsildar had no jurisdiction under Cr.P.C. to conduct investigation. It may be noted that areas of investigation have been divided into "A" and "B" since very long and the police has been conducting investigation in this part of the country' only in "A" areas; whereas the Tehsildar, Naib‑Tehsildar as incharge of levies have been responsible for conducting investigation in "B" areas. A specific provision for investigation by Levies had been made in the Criminal Law (Special Provisions) Ordinance (11 of 1968) which law was declared void being violative of the Constitution. But the areas of investigation are still divided into "A" and "B" areas and it requires time and money to make alternate arrangement for introducing police in all the areas. However, till such arrangements are made Courts would not create a vacuum to the prevalent practice of investigation which is carried out by Naib Tehsildar alongwith Levies. From the above discussion we have come to the concussion that the prosecution brought sufficient evidence and proved the charge to the hilt against the accused by producing ocular evidence, dying declaration, recovery of incriminating articles and circumstantial evidence. The conclusions drawn by the trial Court are uncalled for and perverse. The judgment of the Sessions Judge, dated, 14‑2‑1995 is, therefore, set aside and in view of overwhelming evidence the accused is found guilty for an offence under section 302, P.P.C. However, keeping in view the circumstances of the case we convict the accused under section 302(b), P.P.C. He is sentenced to suffer imprisonment for life. He shall be arrested and confined in Central Jail Mach to undergo the sentence. He is also given benefit of section 382(b), Cr.P.C. N.H.Q./560/Q Appeal accepted