2004 PLP 1276 (MLD)

RAHMAT HUSSAIN JAFFERI, J.‑‑‑The present appeal is directed against the judgment dated 16‑4‑2002, passed by the learned IInd Additional Sessions Judge, Dadu in Sessions Case No.184 of 1997 (State v. Misroo and others). Under the impugned judgment, the learned Judge convicted the appellants under section 302, P.P.C. and sentenced each of them to suffer imprisonment for life and fine of Rs' 50,000, or in default thereof to suffer R.I. for 2 years with benefit of section 382‑B, Cr.P.C.

2. The facts giving rise to the present appeal are that on 17‑11‑1992 the complainant Ali Asghar, his brother Ali Akbar, his maternal uncle Gullan and his father Ghulam Sarwar were sleeping in the house alongwith their family members. Out of them, Ghulam Sarwar was sleeping in a room of the house whereas other persons were sleeping in the veranda. At about midnight time viz. 12‑30 a.m., 5 dacoits entered the house. Out of them they identified the appellants Misroo and Punhoon who were armed with klashnikovs and‑absconding accused Hussain and Allahdad armed with rifle and gun and one culprit was unidentified. They overpowered the persons present in the veranda whereas both the appellants entered the room where Ghulam Sarwar was sleeping. The appellants fired from their klashnikovs at Ghulam Sarwar who received the injuries and raised cries. Thereafter the culprits ran away. The complainant and P.Ws. entered the room where they found Ghulam Sarwar lying dead having fire‑arm injuries on his neck and other parts of his body. Due to non‑availability of transport and odd hours of the night, the complainant spent the night in the house. In the morning they went to police station and lodged the report at 9‑00 a.m. at a distance of about 7 miles. The motive of the incident is alleged that about 8 or 9 years back from the date of incident the appellants declared deceased Ghulam Sarwar as their "KARO". The deceased tried to convince the appellants on Holy Quran that the allegation was false but the appellants did not listen to him, therefore, they shifted to Nawabshah from their village. About two years prior to this incident, the deceased alongwith his sons, family members and P.Ws. came and started residing in the village of Abu Samad to cultivate lands. It is alleged that because of the above allegation of the appellants this incident had occurred.

3. The police started investigation. The Investigating Officer visited the place of incident secured the blood‑stained earth and removed the dead body to hospital for post‑mortem examination. He recorded the statement of witnesses. On 26‑12‑1992 he arrested the appellants. After completing the investigation, he submitted the charge‑sheet before the Court.

4. After declaring the accused Hussain and Allahdad as absconders, the trial Court framed the charge under sections 302, 34, P.P.C. against the appellants to which they pleaded not guilty.

5. In support of the case the prosecution examined following 9 witnesses:‑‑ (i) P.W.1. Complainant Ali Asghar. He disclosed the same facts of the incident as mentioned above. He also gave the details of the motive, which are same as mentioned above. (ii) Two eye‑witnesses P.W.2 Ali Akbar son of Jamal and P.W.6 Akbar son of Ghulam Sarwar (deceased). The both gave the same details of the incident as mentioned above. They also gave details of motive. P.W.6 further disclosed that‑electric bulb was lightning at the place and time of the incident. (iii) P. W .3. Tapedar Ghulam Hyder. He prepared the sketch of the scene of occurrence. (iv) P.W.4. Dr. Abdul Fatah. He conducted the post‑mortem examination of the deceased Ghulam Sarwar. He produced the post‑mortem report as Exh‑11/A but his statement was not signed by the Presiding Officer. In the meantime, Dr. Abdul Fatah died, therefore, Dr. Muhammad Ismail was examined as P.W.9. He deposed that Dr. Abdul Fatah had died and be was conversant with his signature. After seeing the post‑mortem examination report (Exh. 11/A) he stated that it was in the handwriting of Dr. Abdul Fatah and was signed by him (Dr. Abdul Fatah). According to post‑mortem report, the deceased had following 6 injuries:‑‑ (1) Fire‑arm wound of entrance 1‑1/2 c.m. in diameter at lower of left side neck. (2) Fire‑arm wound of exit 2‑1/2 c.m. in diameter at above right scapular region (exit wound of injury No. 1). (3) Fire‑arm wound of entrance burst type 5 c.m. in diameter at upper part of left chest near axilla. (4) Fire‑arm wound of exit 8 c.m. in diameter at the right chest back below scapular region (exit wound of injury No.2). (5) Fire-arm wound of entrance 3‑1/2 c.m. in diameter at front of left shoulder. (6) Fire-arm wound of exit 4 c.m. in diameter at the back of (exit wound of injury No.3). The doctor opined in the post‑mortem that the deceased received the injuries caused by automatic weapon like Klashinkov and the deceased died because of the said injuries., The time between injuries and death was shown as instantaneous whereas between death and post‑mortem was about 1230 hours. (v) P.W.4 Muhammad Hussain. Mashir of the place of incident, dead body and inquest report. (vi) P.W.5 Khuda Bux. Mashir of arrest of appellants, but he did not support the prosecution case, therefore, he was declared hostile. (vii) P.W.7 Investigating Officer Nazir Ahmed. He gave the details of the investigation.

6. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. The appellants examined themselves on oath. They stated that the deceased was a man of questionable character and had emnity with several persons. They took the plea that they had gone to the village of their Nekmard Mir Gadihi in connection with a faisla and spent the night there. The appellants examined two defence witnesses namely Mir Gadihi and Bahawal. D.W. Mir disposed that there was a faisala before him. The appellants were present in the faisala which continued until late night. Then they stayed in his Otaq. After two days he came to know about the murder of the deceased and that, the appellants were involved in the case by the sons of the deceased. The second defence witness Bahawal stated that he and appellants were present in the faisala and they spent the night in the Otaq. On the next day he came to know about the incident of this case.

7. After considering the material available on the record and hearing the parties counsel, the learned trial Judge convicted the appellants as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment; therefore, they have preferred the present appeal.

8. We have heard the Advocate for the appellants, State Counsel and perused the record of this case very carefully.

9. The learned Advocate for the appellants has stated that the prosecution led 3 pieces of evidence against the appellant viz. motive, ocular testimony and medical evidence; that the motive has not been proved through the evidence of the witnesses; that there is conflict between the medical and oral evidence; that the ocular testimony is not worth reliance because all the P.Ws. are interested and closely related to the deceased; and that the appellants have raised the plea of alibi.

10. On the other hand the learned State Counsel has stated that the case of the prosecution is based upon the evidence of 3 eye witnesses viz. complainant P.Ws. Ali Akbar son of Jamal and Akbar son of Ghulam Sarwar that Ali the P.Ws. gave the evidence about motive and gave the details of the incident; that they have specifically implicated the appellants by assigning them the role of firing from their Klashnikovs at the deceased; that there is no conflict between the medical and oral evidence. He has supported the impugned judgment.

11. We have given due consideration to the arguments and have gone through the evidence with the help of learned Advocate for the appellants and State Counsel. We found that the case rests upon two pieces of evidence viz. motive and ocular testimony.

12. As regards the motive, the prosecution have examined complainant Ali Asghar, P.W. Ali Akbar son of Jamal and Akbar son of Ghulam Sarwar (deceased). All the three eye‑witnesses are unanimous on the point that 8/9 years prior to the incident the appellants levelled allegation that the deceased was their "KARO" and the deceased tried to satisfy the appellants on Holy Quran but they were not satisfied, therefore, they shifted from the village. All the three witnesses were cross‑examined but nothing has come on record to shake their evidence on the above point. Thus the motive as alleged by the prosecution has been proved in this case.

13. As regards the ocular testimony, which consists on the evidence of three eye‑witnesses namely Ali Asghar, Ali Akbar and Akbar son of deceased Ghulam Sarwar. Their evidence reveal that on the date and time of the incident they were sleeping in the house when five dacoits entered their house. Out of them the appellants were identified who were having Klashnikovs whereas the absconding accused Allahdad and Hussain Khidani were armed with gun and rifle. They overpowered the P.Ws. and inmates of the house. Both the appellants entered the room where the deceased was sleeping and they fired at the deceased from their Klashnikovs who raised cries and then the culprits ran away. All the witnesses were cross‑examined by the defence counsel. Questions were asked from them about the enmity of the deceased with other tribes but they denied the said allegations. They were also inquired that the appellants were available in the village of Rais Mir Gadihi in connection with Faisla and spent night of incident in the said village but they denied the same. About the incident of this case, nothing has come on record to discredit their evidence.

14. The learned Advocate for the appellants has stated that the witnesses are interested and closely related to the deceased, therefore, their evidence is untrustworthy and unreliable. In this connection it is pointed out that the incident took place inside the house of the deceased where only the inmates of the house would be present, therefore, they would be the natural witnesses. The incident completed within few moments, therefore, people from neighbourhood could not reach the plea of incident to witness the same. It is pertinent to point out that when the Investigation Officer reached the place of incident he after preparing the required formalities of sending the dead body to hospital, recorded the statement of witnesses Akbar, Gullan and Ali Akbar, Thus, the presence of the witnesses just after the incident has also been established from the statement of the Investigation Officer. No doubt, some witnesses had stated that their statements were recorded after one or two days of the incident. However, the said discrepancy can be omitted, because of the statement of the Investigating Officer who maintains the record of such statements. According to him, the statements of P.Ws. were recorded after completing necessary requirements of sending the dead body to hospital. It is also pointed out that the statements of P.Ws. in the Court were recorded after more than two years of the incident. Therefore, this kind of discrepancy usually occurs because of the lapse of more than two years period in between the incident and the recording of the statements of P.Ws. However it is settled that mere relationship between the witnesses or with the deceased is no ground to discard their evidence unless the witnesses have some motive or cause to falsely implicate the accused. In this case, the witnesses are natural and they have no cause or motive to falsely implicate the appellants.

15. Learned Advocate for the appellants has pointed out that the Medical Officer Dr. Muhammad Ismail after going through the post mortem report stated that there was no blackening around the injuries and the blackening would appear if fire‑arm shot is fired from a distance within 3 feet. But according to P.W.3 Tapedar Ghulam Hyder the distance between the deceased and the assailants were shown to be 3 feet, therefore, there is conflict between the medical and oral evidence. We have examined the statement of all the 3 witnesses. None of these witnesses gave the distance of fire‑arm shots fired by the appellants at the deceased. The distance shown by the Tapedar in his sketch, which was prepared after two years of the incident would not by itself be sufficient to discard the ocular testimony. Even otherwise the site‑plan is not a substantive piece of evidence as held in the case of Mst. Shamim Akhtar v. Fiaz Akhtar reported in PLD 1992 SC

211. It has been held in the case of Sardar Khan v. State reported in 1998 SCMR 1823 that the Site plan by itself is not a substantive piece of evidence so that it could contradict ocular account. It has further been held in the case of Muhammad Iqbal v. Muhammad Akram reported in 1996 SCMR 908 that site plan is not substance piece of evidence and cannot be used to discard the evidence of a witness unless he is confronted with the site plan.

16. After scrutinizing the evidence of eye‑witnesses, we are of the considered view that the witnesses are natural and their evidence is confidence inspiring. The medical evidence has corroborated them. Thus the prosecution have proved the ocular testimony.

17. As regards the plea of alibi taken by the appellants, their case is that on the night of incident they had gone to attend a Faisla in village Rais Mir Gadihi and spent the night there. In their support they examined themselves and two witnesses namely Mir and their Zamindar Bahawal. Both the defence witnesses stated that there was a faisla in which the appellants participated which continued until late hours of night and then all the persons stayed in the Otaq of D.W. Mir. None of these witnesses or the appellants gave the exact time of completing Faisla. The D. Ws. stated that all the participants stayed in the Otaq. In this case the incident took place at midnight at 12‑30 a.m. Even if we accept the story furnished by the appellants that there was a faisla in the village of D.W. Mir Gadihi but the possibility of leaving the appellants and returning to the Otaq after commission of this crime cannot be ruled out. For accepting the plea of alibi, the appellants are required to prove that at the particular time of incident they were available at some other place. But in this case the appellants have not led any evidence to show that precisely at 12‑30 a.m. to the night of 17‑11‑1992 they were available in the Otaq. A general statement was given by the appellants as well as by the D.Ws. about the presence, of appellants in the Otaq, which cannot be accepted in presence of specific evidence of 3 eye‑witnesses of the incident who specifically stated that at 12‑30 a.m. they found the appellants present at the scene of incident committing the murder of the deceased. Under these circumstances, it is very unsafe to rely upon such type of plea of aliabi.

18. It has been held in the case of Ameenullah v. State reported in PLD 1976 SC 629 that alibi evidence is to be scrutinized very carefully for it is very easy to set up alibi and not always easy to prove and that it must be definitely proved in order to suffice for the rebuttal of a case made out by the prosecution. It has been held in Khushi Muhammad v. State 1983 SCMR 697 that a person raising plea of alibi must discharge the burden of proving it.

19. After considering the material available on the record we are of the considered view that the prosecution have proved their case against the appellants beyond any reasonable doubt, therefore, they are rightly convicted by the trial Court. A perusal of the judgment reveals that the appellants were convicted under section 302, P.P.C. without showing arty of its clauses. The trial Court while convicting the appellants under section 302, P.P.C. should have also mentioned its clause but the same has not been done, therefore, the same is required to be corrected. Furthermore, the trial Court has awarded the sentence of fine, which is not provided under any clauses of section 302, P.P.C. Therefore, law does not warrant the said sentence. The trial Court did not award compensation as required under section 544‑A, Cr.P.C. which is required to be awarded.

20. Above are, the reasons of our short order dated 5‑11‑2003 by which we had disposed of the appeal in the following manner. "

For reasons to be recorded separately the appeal is dismissed with the modification that the conviction of both the appellants is maintained for an offence punishable under section 302(b), P.P.C. and the amount of fine of Rs.50,000 is converted to compensation under section 544‑A. Cr P.C. be paid to the heirs of the deceased and in case of non payment of compensation the appellants shall suffer rigorous imprisonment for six months more. Benefit of section 382‑B, Cr.P.C. as already allowed, is maintained." H.B.T./M‑54/K Appeal dismissed with modification.