P L D 2001 Peshawar 117 (PLP)

(2) F.A. exit wound 1/4" x 1/4" left sub-mandible. The tire-arm used for the same. Nature of the injuries was grievous. The medico-legal report Exh.P.W.4/1 correctly bears the signature of this witness.

7. P.W.6 Dr. Zalmai Sheher Yar, Hayat Shaheed Teaching Hospital Peshawar on 21-2-1995 conducted post-mortem examination on the dead body of Hasan Khan son of Aslam Khan and found the following:-- No legature marks on the neck. Aged 45/48 years old man of well built wearing Salary colour Shalwar and shirt and white Banyan. All blood-stained with fire-arm defect. Post-mortem lividity and R.M. developed. (1) F.A. entry wound on the right side front abdomen 1.5 x 1 c.m. in size, 2 c.m. from mid-tine and 5 c.m. above right costal margin. (2) F.A. exit would on the left back chest 1 x 1 c.m. in size 16 c.m. from mid-line and 2 c.m. below the inferior angle of left scapula. (3) F.A. wound on the posterior aspect of left elbow-joint x 1 c.m. in size 3 (bullet) recovered from inner aspect of left arm;. (4) F.A. entry wound on the lateral aspect of right aim 1 x 0.5 c.m. in size 9 c.m. above the right elbow-joint. (5) F.A. exit wound on the right armpit 2 x 1 c.m. in size. (6) F.A. entry wound on the internal aspect of right thigh 0.5 x 0.5 c.m. in size 16 c.m. above the right knee joint. (i) F.A. exist wound on the anterior lateral aspect of right thigh 1 x 1 c.m. in size 11 c.m. above the right knee joint. (8) F.A. gutter on the right side scrotum 2 x 1.5 c.m. in size. Internal examination Walls, ribs and cartilages, pleaura, left lung, blood vessel, abdomen, walls, peritoneum, disphragm, stomach, spleen, injured. In the opinion of the doctor, the deceased died due to fire-arm injury on the left lung, stomach and spleen. Probable time between injury and death is immediate and between death and post-mortem 9 to 12 hours. The post-mortem report Exh.P.M. is in the handwriting of this witness and correctly bears his signature.

8. Mst. Hussan Pari narrated the same story which she has given in her first information report and has been reproduced it details in the earlier part of this judgment.

9. The next witness Sher Afzal P.W.7 has stated that he rushed to the scene of occurrence after hearing the report of fire shots and spotted accused Madad Khan, Khalid, Misri Khan when they were running from the spot while apprehended accused Hashim Khan on the spot. He has. Also supported Mst. Hussan Pari P.W.8 on material particulars.

10. The appellant was called upon to record his statement under section 342, Cr.P.C. by the learned trial Court after the prosecution closed its case. The entire evidence recorded at the trial was put to him in his statement under section 342, Cr.P.C. where he rebutted all the charges by professing complete innocence. However, he did not opt for producing evidence in his defence nor to appear as witness in his own defence under section 340, Cr.P.C. The learned Public Prosecutor and the learned defence counsel were heard and the trial concluded in the finding of guilt and the appellant was convicted and sentenced as detailed in the first paragraph of this judgment. The appellant has assailed the impugned judgment and conviction by way of this appeal.

11. We have heard Mr. Khawaja Muhammad Khan, Advocate, learned counsel for the appellant, who argued that the occurrence has taken place in the dark of the night at 01-00 hour; that only Muhammad Khan has been charged in the F.I.R. for firing that the motive has been attributed to Khan Muhammad as against the husband of the complainant; that the appellant was not a party to the dispute over the landed property; that the motive has not been proved; that the existence of electric bulb lit on the spot has not been mentioned in the F.I.R.; that the complainant has been shown in one room while the deceased has been shown in the other and that the empty shells have not been sent to the Arms Expert to ascertain as to whether they were fired from one and the same weapon or otherwise.

12. While contesting the aforesaid arguments, learned counsel for the respondent argued that the report has been promptly lodged; the accused have been directly charged and the complainant has been supported by other witnesses; that the circumstantial evidence also supports the prosecution case; that the house of Sher Afzal is close by, and therefore, his immediate arrival on the spot is quite natural.

13. After hearing the learned counsel for the rival sides, we have examined the record down to the lowest strata. The learned trial Court has recorded the conviction on the basis of the charge levelled in the F.I.R. and in the statements of eye-witnesses Mst. Hussan Pari P.W.8 and Sher Afzal P.W.9 together with the corroborative evidence in shape of incriminating articles recovered from the scene of the occurrence. The arrest of Hashim Khan appellant on the spot has also been taken into consideration for the purpose of conviction. The learned trial Court has held that the appellant had accompanied the absconding co-accused into the house of the complainant and was thus, acting in the prosecution of the common object of the unlawful assembly so formed.

15. Mst. Hussan Pari P.W.8, who has lodged the F.I.R., has received injuries on the spot which establishes her presence at the time of occurrence beyond reasonable doubt. She has specifically charged a appellant alongwith the absconding accused to have intruded into her house at 01-0C hours (mid-night) when she alongwith the inmates were asleep. She has narrated the occurrence in the F.I.R. by stating that Muhammad Khan started the firing and has not mentioned as to whether the appellant had also fired or not. The learned counsel for the appellant argued that Hashim Khan appellant has not been attributed the role of firing in the F.I.R. Mst. Hussan Pari has later on categorically stated in her statement at the trial that all the accused, including the appellant, had fired at her and the two deceased. The next eye witness Mst. Asta Pari had also charged all the accused for effective firing on the two deceased and one injured in her statement recorded under A section 161, Cr.P.C. but we cannot rely on her statement because she was murdered before she could be examined at the trial. True that Mst. Hussan Pari has not stated in so many words in her F.I.R. that the appellant also fired at her and the two deceased but, as stated earlier, she has not altogether excluded the act of firing by the appellant, rather she has remained silent on this aspect in the F.I.R. There is qualitative difference between a negative note in a statement regarding certain matter and remaining silent about such matter, for after recording a negative note, the witness cannot turn round and speak in positive because that would be negation of his first statement but where he remains silent and explains the matter later, it can be justified on many reasons. The first reason in this direction which has been repeatedly approved by the superior Courts is that F.I.R. is not a document which contain all the details and, secondly, an injured person, more particularly a woman, would be under accute psychological depression and may omit to mention certain details. In the instant case, Mst. Hussan Pari has specifically charged the appellant in the F.I.R. for entering the house alongwith the absconding accused and, subsequently, in her statement at the trial, she has directly charged the appellant for firing alongwith the absconding accused. Therefore, we understand that such a negligible difference would not render it a material improvement on previous statement.

16. Another improvement on the F.I.R. was alleged, namely, that the presence of electric bulbs has not been mentioned therein and that the same is an afterthought. For the reasons we have detailed in the preceding para. about the contents of F.I.R., we do not agree with this argument. The Investigating Officer after finishing the recording of the report and preparation of injury sheet etc. at about 3-30 a.m. (after midnight) immediately left for the spot and, upon reaching there, he found these bulbs shedding light. Therefore, even if Mst. Hussan Pari has omitted to mention these bulbs, would not make any difference because it is a matter of common knowledge that lights are kept on for security purpose in the courtyard of every house in the rural area. Moreover, Mst. Hussan Pari has specifically charged the appellant and the absconding accused meaning thereby that she could distinctly see them at the time of occurrence. In these circumstances we dispel the argument regarding doubt in the presence of bulbs at the time of occurrence.

17. It was next contended that the motive has not been proved and that the alleged motive has been subsequently confined to Khan Muhammad and not to the present appellant. A perusal of the statement of Mst. Hussan Pari indicates that during cross-examination she agreed to a suggestion by stating that "it is correct that the civil dispute was between my husband and accused Khan Muhammad only". In our view, this statement would hardly render any support to the aforesaid contention because Khan Muhammad is the father of the appellant and his two brothers Misri Khan and Madad Khan, absconding accused, and, in such circumstances the appellant and his two brothers were the legal and real successors of Khan Muhammad which would obviously mean that they would inherit the property in dispute from Khan Muhammad. In this view of the matter, we hold that the aforesaid argument cannot be accepted as a good ground for creating reasonable doubt in the prosecution story. So far as the proof of motive is concerned, we would like to state that motive is a corroborative evidence and is, therefore required to be proved only and not required to he proved beyond reasonable doubt like evidence on substantial charge. And in this behalf, positive assertion by Mst. Hussan Pari regarding the civil dispute over property and the suggestion given by the defence in the cross-examination are sufficient to prove the existence of motive. Similarly, the common interest of the appellant with his two brothers' (absconding accused) is also more than obvious.

18. On correct reading of evidence we find that the so-called kitchen shown in the site plan Exh.P.B. is not in the shape of a close room but appears to be an open 'Chappar' and the location of Kotha where Hassan Khan deceased was murdered is such that every type of activity is distinctly visible from the place of presence of Mst. Hussan Pari. The evidence further bespeaks that Mst. Zojana deceased was lying in one bed with her mother Mst. Hussan Pari and was thus, done to death within the sight and presence of Mst. Hussan Pari and she was also shot but she survived in spite of injury while Hassan Khan. her son-in-law, was also murdered in front of her eyes. Blood-stained earth has also been recovered from the two places. The site plan further indicates that Mst, Hussan Pari, in injured condition, walked a few steps to reach point No. l l wherefrom the bed of Hassan Khan is visible and is close to point No.8 wherefrom Muhammad Khan son of Misri Khan, absconding accused, has been shown to fire at Hasan Khan deceased. For the foregoing, we are not persuaded to agree with the learned counsel that Mst. Hussan Pari was in a different room and, therefore, could not see the killing of Hassan Khan deceased.

19. We have carefully examined the record vis-a-vis the stand taken at the Bar that the appellant was not apprehended on the spot, as alleged by Sher Afzal P.W.9, because the Investigating Officer has not stated a single word regarding handing over of the appellant to the police by Sher Afzal P.W.9. The evidence is not very clear on the exact mode of apprehension of the appellant and his handing over to the police on its arrival. Nevertheless, there is no doubt nor dispute that the appellant was arrested on the spot immediately on the arrival of the local police. Therefore, even if the small portion of evidence regarding the actual apprehension on the spot of the appellant is ignored due to lack of proper proof, the responsibility of the appellant for the commission of the offence is not reduced because he was arrested from the vicinity of the spot by the local police immediately after its arrival. Moreover, there is a trustworthy and unshaken evidence of an injured witness against him.

20. We have also examined the question of non-examination of the empty shells through Arms Expert in the Forensic Science Laboratory. The common practice with the Investigation Officers is that when they succeed in recovering the crime weapon then they send the same with the empty shells to the F.S.L. In the instant case, the crime weapon was not recovered, therefore, the Investigating Officer had not sent the empty shells for examination to the F.S.L. The argument that the empty shells were not sent for examination because they were fired from one and the same weapon does not appeal to reason because once the Investigating Officer is bent upon dishonestly, then he can easily change/replace the empty shell. It is worthwhile to state that 3 empties P-1 are of .38 bore while one empty P-2 is of .32 bore and, therefore, it is more than obvious that the empties recovered were of different weapons. Moreover, the accused has never requested for examination of these empties, through F.S.L., even during trial. This being so, we are of the view that this argument does not hold water.

21. On correct reading of evidence, we find that the prosecution has proved its case through ocular testimony which gets support from the medical evidence. The recovery of empty shells and blood-stained earth from the scene of occurrence lend further support to the prosecution case. Mst. Hussan Pari P.W.8. besides being injured, is the inmate of the house and is thus a natural witness. The appellant and the co-accused had intruded into the house for the commission of the diabolic act of murdering innocent persons for the purpose of grabbing landed property. The accused are closely known to the eye-witness and were distinctly visible to her in the light shed by two bulbs of 100 watts. The common interest of the appellant with the absconding accused is also evident from the cross-examination of the eye witness by the accused at the trial.

22. For what has been stated above, we are of the firm view that the prosecution has successfully brought home charge to the appellant and that the learned trial Court has properly and correctly appreciated the evidence and the law applicable in the circumstances of the case. We have examined the judgment of the learned trail Court and the proceedings recorded and find that no irregularity has been committed,

23. Resultantly, we do not find merit in the instant appeal and dismiss the same. The impugned judgment and order of conviction passed by the learned trial Court are maintained. N.H.Q./300/P Appeal dismissed.