1977 P Cr (PLP)

This judgment will dispose of Criminal Appeals Nos. 24 to 29 of 1976, and Criminal Revision No. 2141 of 1976 filed by Amir Khan, complainant. Sher Dil, Suba Khan, Mir Khan: and Ahmed Khan are brothers; while Alam 9her is the son of first cousin. Sher Dil and his brothers were the first cousin of Muhammad Khan deceased. Latter s sister is married to Fateh Khan who is a brother of Sher Dil appellant. The appellants as well as the complainants are residents of Wandha Abizer Kbelanwala, Dakhli Sultan Waia Sharqi, Police Station, Musa Khel, Tehsil and District Mianwali. The back-ground of this incident is that Muhammad Khan deceased, being a married man already, developed illegitimate connections with Mat. Sardaran, his first cousin, and sister of Sher Dil and his brothers. This affair became a common knowledge in the village, bringing dishonors to the family of the appellants, who became ignited with a passion to wreak vengeance which resulted in a number of criminal cases being registered between the complainants on the one hand and appellants' party on the other. The failure of previous efforts did not lessen the determination of the appellants. Final opportunity was provided at Degarwea on 5-11-1973 when Muhammad Khan deceased, his father Amir Khan (P. W. 16), his wife Mst. Sardar Khatoon (P. W. 13) along with Muhammad Khan, P. W. 11, were returning from village Chhidru after doing some shopping from the shop of Mohammad Khan; (P. W. 11). The party was going towards their Wanda and arrived at Odin Khelanwala when they saw a Khoia towards south of pacca road. Subs Khan. and Slier Dil, armed with guns, came out and challenge) Muhammad Khan. The complainant ran towards the north, and from a depression on that side, Khan Mir, Ahmad Khan, and Alam Sher armed with guns, came out and surrounded Muhammad Khan. Alam Sher fired and hit the felt cheek of the deceased Muhammad Khan. He fell down. Khan Mir fired the second shot that hit the head of the decease). When his wife (Mat. Sardar Khatoon) dared to rescue her husband, she was fired upon by Soba Khan. The fire bit her left log at thigh. Thereafter all the appellants fir-,.d at the deceased, who died at the spot and left for Wandha Abizar. Apart from the father, and the wife of the deceased, the incident was witnessed by Muhammad Khan (P. W. 11). who bad accom panied the party from village Chiddru and Hakam Khan (P. W. 12).

2. The learned Sessions Judge after examining 16 witnesses for the prosecution, and statements of the appellants, and exhibits of prosecution and defence, found all the appellants guilty, and convicted them under section 302/149, P. P. C. for the murder of Muhammad Khan and sentenced them to imprisonment for life and a fire of Re. 500 each, and under section 307 react with section 149, P. P. C, for attempt on the life of Mst. Sardar Khatoon P. W. 13, anal sentenced them to 5 years' R. I. each, and fine of Rs. 100 each, and under section 148, P. P. C. sentenced to two years' R. I. tech (all the sentences to run concurrently). The judgment was delivered on 11-12-1975. By separate judgments, dated 11-12-975, all the appellants were convicted under section 13 of the Arms Ordinance, 1965. Each of them was sentenced to three years' R. I.

3. After the assailants had left, the complainants' party, along with the dead body of Muhammad Khan, and Mst. Sardar Khatun P.W. In an injured condition, went to Musa Khel Police Station which is 7 miles away from the place of occurrence towards the south. There at 6-45 p. m., and.

1. R. Exh. P. A. was lodged by Amir Khan P. W.

16. At the outset. I propose to consider legal objections taken by Mr. M. B. Zaman, earned counsel for the appellants, regarding the admissibility of F. I. R. Exh. P.A. and the statement of Amir Khan P. W.

16. On 8-12-1975, Amir Khan P. W. appeared in Court. The learned Sessions Judge observed hat ho appeared to be ill and could not speak properly due to facial paralysis. With the agreement of the learned counsel of defence, the statement f the witness, recorded before the Committing Magistrate, was transferred to Le Sessions file under section 33 of the Evidence Act. The learned counsel contends, with justification, that there is no co-relation between facial paralysis and inability to speak, if the witness could not speak properly, he could have been examined in the form of leading questions as provided in section 154 of the Evidence Act. The condition of the witness was not such that could, justify the conclusion that he was incapable of giving evidence. The assent of the defence counsel, non-obstante, the provisions of section 33 of the Evidence Act were not attracted. In the case of Ali Harder v. State (P L D 1958 S C (Pak.) 392), it was observed that foundation for recourse to section 33 of the Evidence Act must be laid down by strict proof that; the witness was incapable of giving the evidence. Incapacity is not inconvenience.

4. In Munsif khan v. State (P L D 1960 Lah. 1206), which is a Division Bench ruling, it was held that the admission of the defence counsel does not act as estoppel against the accused. In Mewa v. State (P L D 1958 Lah. 468) it was observed that the witness of tender age, becoming nervous in the Court, was not sufficient to bring forth the provisions of section

33. In Matia Badian v. State (P L D 1958 Dams 451), it is reported that there must be strict proof of incapacity.

5. The above cases support the proposition that there must be ample proof of incapacity. From the order of learned Sessions Judge, at the most, it ran be said, that the witness may have some difficulty of speaking. Difficulty in speech is not the same thing as incapacity of speech. There does not appear to be any test conducted by the learned Sessions Judge. He rather took charitable view, which was strengthened by the attitude of the learned counsel. In all fairness, I hold that the evidence of Amir Khan and the F.1. R, with all its figs and thistles, must be kept out of consideration in determining the guilt or innocence of the appellants.

6. On 6-11-1973, Ch. Ahmad Ali, S. H. O., P. W. 14, inspected the place of occurrence wherefrom he recovered three empty cartridges Exh. P. 2/1-3 and 12 empty shells Exh. P 1/1-t2 and took them into possession tilde memo. Exh. P. C. Saifullah P. W. 9, the recovery witness, is brother-in. law of the deceased. Fateh Khan another recovery witness has not been produced. He arrested all the accused on 9-11-1973 and handed over the recoveries to Luqman, F. C. and blood-stained earth and sealed parcel containing blood-stained earth, for transmission to the Chemical Examiner and Forensic Science Laboratory, Lahore. From 6th to 9th of November 1973, the Investigating Officer kept the recoveries with him and did not even deposit them in the Police Malkhana, contrary to practical albeit he had opportunity to do so. He gave no explanations for this behaviour. The recovery witness is P. W.

9. His statement regarding recovery was recorded on 19-1-1974. No explanation is forthcoming as to why the statement of the recovery witness was not recorded on 6-2-1973. The recording of the statement of this witnesses after more than 2; months is extraordinary. Under these circumstances, I propose to regard recovery of empties from the place of occurrence as of no corroborative value although according to the report of the Forensic Expert, Sh. Abdur -Rashid P. W. 15, many of those empties were fired from the weapons recovered from Ahmad Khan, Khan Mir, Suba Khan and Sher Dil. (Exh. P. N. is the report of this Expect). Rifle recovered from Alam Sher Exh. P. 3 vide, Exh. P. G. could not fire due to some inherent mechanical defect. Gun P. 7 vides Exh. P. J. was recovered from Sher Dil and rifle P. 8 vides Exh. P. K. recovered from Suba Khan and rifle P. 11, ride Exh. P. L. was recovered from Ahmad Khan. All the recoveries were made from the residential Kothas of the accused on 16-11-73 at. Wanda Abisar Khalan Wala Dakhli Sultan Wala Sharqi. Khan Mir P. W. 10, the recovery witness, is the consanguine brother of Mst. Sardar Khatun P. W. widow of the deceased. According to his statement, he joined the police party when it was passing by the house of the deceased; whereas according to the Investigat ing Officer, the recovery witnesses met him when he alighted at Odin Khelan Wala bus stop and from there he took them to the pace of the recovery. On the basis of the shove, learned counsel for the appellants agues that the above recoveries were also doubtful. In my opinion, the above variations are not so material as to negative the factum of recoveries. However, under the circumstance, there corroborative value is of little significance, since the material part of the evidence on this point t. e. marriage of the empties with the weapon has been left out of consideration.

7. On 7-11-1973 at 9-00 a. m. Dr. Jamshed Alam, Medical Officer, Civil Hospital, performed autopsy on the dead body Muhammad Khan which was identified by his son Khan Zaman P. W. 4 and found tire following injuries on the body (1) A fire-arm wound of entry " x " on the rift side of the neck, 3" behind the right ear. (2) A fire-arm wound of exit 2 " x 2" on the left side of check over the angle of left mandible with fracture of the underlying bone. (3) A fire-arm wound of entry 1" x 1" on the riot side of two head 4" above night ear. (4) A fire-arm wound of exit 6" x 5" on the neck of the head with multiple communicated fracture of the skull, brain matter smashed. (5) A fire-arm wound of entry 3" x 1 " on the bad of the right wrist with fracture of radius and ulna. (6) A fire-arm wound of exit 2" x " on the inner side of the right thigh 1' above knee-joint. (7) An abrasion mark x " on the inner sip of the right thigh 1" above knee-joint. (8) An abrasion mark " x " on the inner side Of the right leg 4" below right knee joint. In the opinion of the doctor, injuries were sufficient it the ordinary course to cause death. Exh. P. B. is the post-mortem report and Exh. P. B. 1 and Exh, P. B. 2 are doctor's sketches. On 6-11-1973, at 9-00 a. m. Dr. Mrs. Aisha Sher Muhammad, Women Medical Officer, D. H. Q Hospital, Mianwali, examined Mst. Sardar Khatun P. W. and found the folding injuries on herd person: - (1) A penetrating wound " x " of nearly circular margins blackened on the left thigh lo" above the left knee-joint. This was a wound of entrance. This was on medial side of the thigh, (2) A penetrating wound 1" X " muscle deep elliptical in shape irregular margins on the left thigh 9 " above the left knee-joint. This was on the lateral side of the thigh, and was a wound omit. Wounds Nos. 1 and 2 were connected with each other. (3) An abrasion 1' x f covered with scab on the right fore-arm 3 " wrist joint with a swelling 2" x 2" around the wound, (4) An abrasion " x " covered with scab on N right fore-arm 4 " above the wrist joint. All the injuries were simple. Injuries 1 and 2 were cats by firearm and 3 and 4 by blunt weapon. Duration of injuries between 12 to 24 hours. Exh. P. N. is the Medical Lego Report and Exh. P. N. /1 is the sketch.

8. Muhammad Amir F. C. P. W. 3 had escorted dead body of Muhammad Khan and hi-let. Sardar Khatun to the hospital. On 9-11-1973 Ahmad Ali, S. I. P. W. 14, handed over two sealed parcels containing blood., stained earth, empty cartridges recovered from the spot to Luqman P. W. 5 who delivered those to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. Sabir Hussain, S.

1. P. W. 6 on 16-11-1973 received five sealed parcels containing four rifles and a gun, which were kept at police Malkhana. Maqbool Hussain Shah, F. C. P. W. 7 on 19-12-73 diverted those guns at Forensic Science Laboratory, Lahore. Ghulam Akbar Patwari, P. W. 8 prepared a site plan Exh. P. F. He admitted that Mauza Chhidru and Mianwali are connected by metalled road. Buses and taxis ply in. between these places. He also admitted that Adda Odin Khelanwala is about two furlongs away from the place of the occurrence and is on the metalled road. The site-plan did not show the exact spot from where the empties were recovered. The occurrence took place in Khasra No. 280 where there was jawar crop of 3J feet height.

9. Khan Muhammad, P. W. 11, is an eye-witness of the occurrence. He has shop at village Chhidru, where complainant's party had done the shopping. He accompanied the complainant's party to Layallpur, He narrated the incident (the occurrence) as recorded, ante; vie. Sher Dil and Suba Khan armed with guns emerged front a Khola and they challenged Muhammad Khan. Out of fear, and for succour, the complainant's party ran northwards from where Khan Mir, Ahmad Khan, and Alain Sher, armed with guns emerged. Alam Sher fired hitting right side of the nick; on which the deceased fell down, whereafter Khan Mir fired which; hit the head of the deceased. When Mst. Sardan Khatun went near, Suba Khan freed at her, which bit her left thigh. Thereafter. Sher Dil fired a shot hitting the right fore-arm of the deceased. Then Ahmad Khan fired which hit the head of the deceased. Thereafter each fired one shot which did not < it any one. He accompanied the complainant's party to the police station, where, according to him, Amir Khan lodged the F. I. R. This witness is closely related to the accused; his wife being niece of Sher Dil and the mother of Suba Khan and others is his cousin.

10. Learned counsel for the appellants has attacked his statement on the ground that: this witness bad been thrice challaned in- murder case, and had already thrice appeared as a witness in murder cases; enough he had served in the Army for 15 years and could distinguish between rifle and the gun; yet he mentioned guns whereas four rifles had been recovered; and used in murder; that he is intimately related to the deceased since his son is married to the daughter of the deceased, and the son of deceased is married to his daughter; that be has been equivocal in many suggestions of enmity with the accused party; that Razaq is cousin of Alam Sher and the witness bad been challaned for the murder of Khan Mir who is cousin of Razaq; that he admitted that Razaq is his enemy and was sitting in the Court with the accused party.

11. The above circumstances are sufficient to hold that this witness is not completely independent. Therefore his testimony requires corroboration. Hakam Khan P. W. 12 is another eye-witness. While going towards his house on foot, this witness saw the occurrence. His evidence regarding the incident is practically the same as narrated by Khan Muhammad P. W.

11. The learned counsel challenges the testimony of this witness on a number of grounds. Firstly, that he is merely a chance witness. It has not been argued that normally it was none of his business to be present at the place of occurrence. He deposed that at Degarwela after alighting from a bus, he was going towards his house, and in the way, saw the occurrence. This may be normal route of this witness. The time that he was passing by the place of occurrence was Degarwela, which is normal time for men of the world to go back to their homes after attending worldly duties. So it is not possible to told that he is a mere chance witness. Next it is contended that wife of Amir P. W. 16, father of the deceased, is his cousin. The above fact comes from the testimony of Amir Khan P. W.

16. Since I have excluded from consideration the testimony of Amir Khan P. W. 16, at the contention of the learned counsel for the appellants and that the admission of his testimony is against the law, no advantage can be taken by the appellants of a fraction of the testimony of Amir Khan. As mentioned above, the statement of Amir Khan is excluded with all its figs and thistles. The next circumstance pointed out by the learned counsel is that Abdus Sattar is his brother-in-law. He is being prosecuted and Amir Abdullah brother of Alam Sher appellant and Abdur Razaq his cousin are eye-witnesses against him. The witness did accept the fact that Abdus Sattar is brother-in-law but expressed ignorance about his prosecution under section 307, P. P. C. or whether the aforesaid brother and. cousin of the accused are witnesses against him. Lie, however, denied the suggestion that he was deliberately concealing that fact. '1-his witness his been prosecuted in a murder case lout was acquitted. Great efforts had been made to involve this witness in a state of inimical relationship with the appellants, but with little success. It is not possible to hold that this witness (Hakam Khan P. W. 12) is an unreliable person, or that he has positive enmity with the accused. His relationship with the deceased has not been established on the record.

12. The most material witness in the case are Mst. Sardar Khatun P. W.

13. She bears the stamp injuries on her person. She had narrated the incident as mentioned above. Her presence at the spot has not been seriously challenged. Though a faint suggestion has been made that her injury may be self-suffered, but this theory has not been pursued. She denied the suggestion that since the deceased was of a bad character and had many enemies and some unknown persons bad killed him in the darkness when he was alone. When she stated that the appellants had enmity with them for the last 7/8 years, she does not seem to refer to any personal enmity. In fact, she bad no personal enmity with the appellant. Only her husband has been engaged in a number of criminal cases with the appellants due to infirmity of his character.

13. From the above discussion, I arrive at the conclusion that she was present at the spot, saw the incident and was injured in the incident. She also corroborates the testimony of Muhammad Khan P. W. 11, and Hakam Khan P. W. 12.

14. Sher Dil, while being examined under section 342, Cr. P. C. denied the allegations against him and stated that the case has been registered due to his enmity with the P. Ws. He produced a number of documents; of which, the learned defence counsel has relied upon mutation D. W. No. 6483 only. This mutation relates to certain relationship of some person-such as Ataullah son of Fateh Khan was married to Mst. Manara etc. However, those relationships do not appear to have material effect on the depositions of the material witnesses. All other appellants have simply denied the allegated and attributed the case to their enmity with prosecution witnesses. They, however, did not produce any defence evidence except as mentioned ibidem. simply denied the alighted and attributed tae case to their enmity with prosecution witnesses. They, however, did not produce any defence evidence except as mentioned ibidem.

15. The defence theory that the occurrence took place at night after dark anal nobody actually saw the occurrence is speit out, inter alla, from the circumstances in which the P. I. It. has been lodged. Can 5-11-1:73, sunset time may be 5-1 5 p.m. The report was lodged at 6-45 p.m. According to the learned counsel, it must be quite dark by that time. The learned counsel submits that since the police station is only 7 miles away and is connected by a pacca road where tree buses ply, the incident may have taken place at 6-3(t rather than at Degarwela. It is because of this; that inordinate delay in the lodging of F. I. R. has not been explained. It is difficult to subscribe to the defence case. If the incident is at Degarwela and the report is lodged at 6-45 and the police station is 7 miles (though connected by metalled road where buses ply) it cannot be said that there was an unreasonable delay. Moreover, no circumstances have been brought on the record to show that between the death of the deceased and the lodging of the F.1. R. there was enough opportunity for the enemies of the deceased to hatch a foul conspiracy. Learned counsel has also attacked the evidence of the witnesses on the ground that they had improved upon their statements recorded before the police. The injury on the left cheek of the deceased is a wound of egress, whereas it is in the police statements of eye-witnesses and F.1. R. that first fire hit the deceased on his left cheek. As mentioned above, I have already excluded from consideration the story in the F. I. R. as well as told by Amir Khan P. W. 16 for reasons given above. However, when Hakam Khan, Mst. Sardar Khatun and Khan Muhammad, Q. Ws. appeared; they were confronted with their police statements Exhs. D. D., D. E. and is. C., wherein they had recorded that first shot by Alam Sher had hit the left cheek of the deceased. The above theory has no vital import. Injuries Nos. 1 and 2 on the deceased are related in this way. The gross wound is on the right side of the neck 3' behind the right ear and the egress wound is on the left cheek. Since a human being is not a statue, and a person under state of fear is bound to make spasmodic movements in an erratic fashion, it may not allow proper vision. The above circumstance pointed out by the learned counsel has little vital significance. The other argument of the learned counsel that after receiving the first injury, since the deceased had fallen down, it was not possible to receive the second injury in the manner it has been described. I do not agree with the contention of the learned counsel. The second fire is an entry wound on the right side of the neck four inches above the ear and the wound of the egress of that fire is on back of the head. It is quite possible to receive such an injury while the deceased was lying on the ground.

16. Relying on the testimony of Muhammad Khan, P. W. 11, Begam Khan, P. W. 12, and Mst. Sardar Khatun, P. W. 19,1 hold that the guilt of the appellants has been established beyond a reasonable doubt. In fact the testimony of Mst. Sardar Khatun P. W. 13 simpliciter would be sufficient for purposes of convictions and sentences of the appellants. There is no merit in Criminal Appeal No. 24 of 1976 which is dismissed.

17. Criminal Appeals Nos. 25 to 29 of 1976 have been filed by Alam Sher, Sher Dil, Suba Khan, Khan Mir and. Ahmad Khan respectively regarding the recovery of gun P. 1 from Khan Mir ; and rifle each (1.1) from others. By judgments dated 11-12-1575, the above appellants were convicted under section 13, Arms Ordinance, 1965, and sentenced to 3 years' R.1. I have examined all the judgments. Apart from changing the navies, the judgments have been written, as if one is a facsimile of the other. In all the above five eases, the evidence consists of the statements of Khan Mir, P. W. 1, and Ch. Ahmad Ali, S. H. O. P. W. 2 and recoveries. The evidence has been recorded in a mechanical fashion. It appears that the entire evidence was recorded once and five copies were prepared and filed in different cases. The judgments have also been written in that mechanical fashion.

18. In case of Muhammad Younas v. State (P L D 1953 L ah. 321), it is reported that if there are common judgments and evidence is copied, the trial was said to be illegal; viz. in violation of mandatory provisions of section 353, Cr. P. C., and sections 137 and 138 of the Evidence Act. Similarly in Nur Ellahi v. State (P L D 1966 S C 708), the Supreme Court disapproved the procedure whereby the evidence of common witnesses was recorded once only anal their statements were read out in the other cases. Similarly in Abdul Waheed v. State (1968 P Cr. L J 776), where the evidence of handwriting expert, who was common in two cases, and whose original deposition was placed on the record of the other case through a carbon copy; the procedure adopted had invalidated the trial, and re-trial was ordered. In case Qilander Khan v. State (P L D 1971 Pesh. 119), the statement of common witnesses were recorded only in one case and the carbon copies thereof were placed on the record of the other cases. It was held that the procedure adopted was illegal.

19. Under the circumstances, I hold that the trial of the appellants in these appeals were illegal. Appeals Nos. 25 to 29 of 1976 are accepted an6 the cases are remanded for re-trial. For reasons given above, Criminal i Appeal No. 24 of 1976 is dismissed. Since the appellants were motivated to avenge family disgrace, brought on them by the deceased, who was the cousin, the appellants do not deserve death sentence. Criminal Revision No. 214 of 1976 is dismissed. Order accordingly.