2006 P Cr (PLP)

JEHANZAIB RAHIM, J.

This appeal is directed against the judgment dated 12-2-2004 passed by the learned Additional Sessions Judge-I, Mansehra whereby appellant Babar Shah son of Zubair Shah was convicted under section 302, P.P.C. and sentenced to imprisonment for life with a fine of Rs.50,000 or in default thereof to further undergo six months rigorous imprisonment. The fine if recovered shall be paid as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. Brief facts of the case are that the complainant, Mst. Amina Bibi brought the dead body of her brother, Luqman Shah with the help of Tilawat Shah to the police station in a jeep and reported to Khawas Khan, S.H.O. that she, along with her mother Mst. Hazrat Nisa and brother Lugman Shah, at about 2030 hours was present in her house when in the meantime the appellant, her relative duly armed with .12 bore shotgun came, fired one shot at her brother and its pellets hit him on his face and forehead and as a result he died on spot. The occurrence was witnessed by her mother. The appellant after the occurrence fled away from the spot. There was no motive for the occurrence. Accordingly, a formal F.I.R. No.41 dated 13-3-2002 was registered against the appellant under section 302, P.P.C. by the S.H.O. Police Station Battal, Mansehra. He prepared the injury sheet, inquest reports and sent the dead body to the mortuary for post-mortem examination. He entrusted the remaining investigation to Nazar-ul-Islam, A.S.-I. who went to the spot, recovered blood-stained earth, one .12 bore empty, prepared the site plan, arrested the appellant and, on his pointation, recovered .12 bore shotgun. He received the post-mortem report, one pellet recovered from the brain of deceased and blood-stained garments. He sent the blood-stained earth, blood-stained garments, .12 bore crime?empty..12 bore shotgun-to the F.S.L. and received the reports. The appellant, on completion of investigation, was challaned to the Court for trial. The copies of the relevant documents as required under section 265-C, Cr.P.C. were supplied to him. The charge was accordingly framed against him to which he pleaded not guilty and claimed trial. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellant, produced eight witnesses. Abdul Qadoos F.C. (P.W.1) escorted the dead body to mortuary for post-mortem examination; brought the deceased's blood-stained clothes, one sealed pellet and handed over to the Investigating Officer. Dr. Shamim Afzal (P.W.2) examined the dead body and found multiple fire-arm entrance wounds on the eyebrow, forehead, right eye and right and left cheek. The brain in the cranium was also injured wherefrom one pellet was recovered, sealed in a bottle and handed over to P.W.1 along with P.M. reports Exh.P.W.2/1 and Exh.P.W.2/2. Khawas Khan, S.H.O. (P.W.3) registered the F.I.R. Exh.P.W.3/1, prepared the injury sheet Exh.P.W.3/2, inquest report Exh.P.W.3/3 and sent the dead body to mortuary for post-mortem examination. Ali Zaman, A.S.-I. (P.W.4) was marginal witness to the recovery of .12 bore crime-empty Exh.P.W.4/1, recovery of .12 bore shotgun Exh.P.W.4/2. Mutabar Shah (P.W.S) was marginal witness to the recovery of blood-stained earth Exh.P.W.5/1 and receipt of blood-stained clothes Exh.P.W.5/2, Tilawat Shah (P.W.6) identified the dead body before the police/doctor. Mst. Amina Bibi, complainant (P.W.7) reiterated the entire occurrence on oath and further deposed that, after registration of the case, the local police came to the village and arrested the accused, who was identified by her on the spot. Nazar-ul-Islam (P.W.8) prepared the site plan Exh.P.W.8/1 took into possession blood-stained earth one .12 bore empty, blood-stained clothes, pellet sent by the doctor, arrested the appellant and, on his pointation, recovered .12 bore shotgun giving smell of fresh discharge, prepared the recovery sketch Exh.P.W.8/2 and recorded the statements of P.Ws. He sent the clothes of deceased to the F.S.L. and received the reports in positive Exh.P.W.8/3 and Exh.P.W.8/4. Similarly, he sent .12 bore shotgun along with the crime-empty to the F.S.L./Fire-arm Expert and also received the reports in positive Exh.P.W.8/5 and Exh.P.W.8/6. He, after completion of investigation, handed over the file to S.H.O., who submitted challan in Court. (Note: Exh.P.W.8/2 to Exh.P.W.8/6 were wrongly marked as Exh.P.W.7/2 to Exh.P.W.7/6). The appellant, on the conclusion of prosecution evidence, was examined under section 342, Cr.P.C. He, in his statement, denied the charge and pleaded innocence. He did not opt to lead any evidence in his defence or appear himself as his own witness in terms of section 340(2), Cr.P.C. The learned Additional Sessions Judge-I, after hearing the parties and appraising the evidence, convicted and sentenced the appellant in terms above stated. Feeling dissatisfied with the conviction and sentence, the appellant has come to this Court in the instant appeal. Similarly, Mst. Amina Bibi being aggrieved with the sentence has also filed Criminal Revision No.3 of 2004 titled Mst. Amina Bibi v. Babar Shah for the enhancement of sentence. By this judgment we propose to dispose of both the matters as these are directed against the same judgment. We have heard the learned counsel for the parties and have gone through the record with their able assistance. The learned counsel for the appellant at the outset contended that there was an unexplained delay in lodging the F.I.R., which could not exclude the possibility of due consultation before the report for false implication of the appellant. The contention of the learned counsel has no force as the record reveals that the occurrence had taken place at 2030 hours (night) in a village situate at a distance of 4/5 kilometers away from the police station. Mst. Amina Bibi (P.W.7) soon after the occurrence had managed the dead body lying on the spot, answered queries of the people gathered around regarding sudden/tragic incident, arranged vehicle and removed the dead body to the police station, where she lodged the report at 2300 hours. The report lodged after 2-1/2 hours of the occurrence was quite natural, self-explanatory and could not be termed as delayed report. Mst. Amina is related to the appellant as her brother is married to his sister. She had no ill-will whatever against the appellant to charge him falsely. Mst. Amina had not attributed any motive to the appellant either in the F.I.R. or in her Court statement. The alleged delay in lodging the F.I.R. was not the result of deliberation so as to concoct a false case against the appellant. The facts and circumstances of the case had completely ruled out any such consultation and, therefore, the delay, if any, would not adversely affect the merits of prosecution case. Even otherwise the delay or promptness in lodging the F.I.R. is hardly relevant to assess the truth or falsity of the case set up in the F.I.R. but is only a circumstance to alert the Court to make close scrutiny of evidence and to judge the intrinsic worth of the statements of witnesses. Mst. Amina being close relative and having no enmity/motive against the appellant could not possibly substitute him with the actual culprit because in murder cases substitution of an accused, who is actually involved in the commission of the crime, is a rare phenomena particularly in an incident in which a single accused was involved in the F.I.R. and the parties are inter se related to each other and due to close kinship, it is very hard to accept the theory of substitution; Muhammad Iqbal v. State PLD 2001 SC

222. The learned counsel next contended that there were two eye-witnesses of the occurrence. Mst. Hazrat Nisa, the mother of deceased, though present in the Court was abandoned by the prosecution as she was not willing to support the prosecution case and the trial Court had recorded conviction on the solitary uncorroborated testimony of Mst. Amina (P.W.7). It is settled law that the prosecution is not bound to produce all the eye-witnesses nominated in the F.I.R. It is always the D quality of evidence and not the quantity of witnesses which counts with the Court; Allah Bakhsh v. Shammi PLD 1980 SC

225. The appellant, if knew that the statement of Mst. Hazrat Nisa was imperative for his defence and she would come out with the truth and would prove him innocent if she was summoned in Court as an eye-witness to record her statement, then the appellant should have called her for examination through the Court under section 540, Cr.P.C. and the trial Court for the ends of justice was bound to have summoned her for recording her statement as an eye-witness of the occurrence but the appellant had made no endeavour to have summoned Mst. Hazrat Nisa for her statement in Court and now he cannot raise this contention at this belated stage. The Honourable Supreme Court in Riaz Ahmad v. State 1986 SCMR 1460, where real brother and father of deceased though mentioned in F.I.R. as eye-witnesses but not produced at the trial because it was considered unnecessary to do so, had observed that non-production of eye-witnesses mentioned in F.I.R. who were closely related to deceased, would not reflect adversely on prosecution case because it was evidently of no use multiplying the testimony of one real brother of deceased with that of other eye-witnesses closely related to deceased. Therefore, non-production. of Mst. Hazrat Nisa in view of above is not fatal to the prosecution "case. Equally, there is no force in the contention of the learned counsel that conviction could not be passed on the basis of solitary statement of Mst. Amina. The conviction can be based on the evidence of solitary witnesses. The Courts have always given emphasis on the quality of evidence having unimpeachable character and dispelling all doubts and not the quantity of the witnesses. In this regard we are fortified by the dictum laid down in 1969 SCMR 76; 1971 SCMR 273 and 659; PLD 1980 SC 225; 1995 SCMR 1979; 2001 SCMR 177; Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC

663. The solitary statement of Mst. Amina is supported by place of occurrence, recoveries and the medical evidence/P.M. report. The blood-stained earth recovered from the spot, according to F.S.L. report, was of human group and the crime-empty fired from the shotgun, which was recovered on the pointation of appellant. She had attributed single fire shot with the shotgun to the appellant in the F.I.R. and according to the P.M. report multiple fire-arm entry wounds were-found on the face and one pellet was also recovered from the brain of deceased. The nature of injuries and recovery of pellet undoubtedly established that .12 bore shotgun was used for the murder of deceased. The learned counsel next contended that the recovery of crime weapon was not witnessed by independent private witnesses and the recovery so effected from the open place was in violation of section 103, Cr.P.C. The learned counsel did not dispute the recovery of crime shotgun at the pointation of appellant soon after his arrest on the night of. occurrence. The crime-empty (.12 bore) recovered from spot was fired from the same weapon (.12 bore gun) as per F.S.L./Fire-arm Expert report Exh.P.W.8/5 and Exh.P..W.8/6. The multiple fire-arm entry wounds and recovery of one pellet from the dead body was the result of shot fired from the same weapon. In the presence of ocular account furnished by an eye-witness (P.W.7), the recovery of crime gun could not be said to have been planted or foisted upon the appellant. No doubt the recovery of crime weapon Exh.P.W.4/2 was witnessed by the police officials but they are as good witnesses as private and no legal bar has been imposed on them to become witnesses of recovery. The Honourable Supreme Court had settled in Muhammad Naeem v. State 1992 SCMR 1617 that the police officials are as good witnesses as any other citizen and unless any mala fide is established against them, their depositions cannot be brushed aside simply on the ground that they belong to the H Police Department responsible for maintaining law and order. The Honourable Supreme Court had reiterated the rule in Muhammad Hanif v. State 2003 SCMR 1237 and had observed that "even otherwise the reluctance of general public to become witness in such-like cases has by now become a judicially recognized fact and there is no option left but to consider the statement of an official witness as no legal bar has been imposed in this regard. If any authority is needed reference can be made to Hayat Bibi v. Muhammad Khan 1976 SCMR 128, Yaqoob Shah v. State PLD 1976 SC

53. The police officials are equally good witnesses and could be relied if their testimony remains unshattered during cross-examination. In this regard reference can be made to Muhammad Naeem v. State 1992 SCMR 1617, Muhammad v. State PLD 1981 SC 635. "Even otherwise the provisions of section,103, Cr.P.C. did not strictly apply in a case where accused person led Investigating Officer to the place where he had concealed the incriminating articles and produced the same himself. Section 103 (ibid) is applicable in case of a search under Chap.VII, Cr.P.C. Evidently, the production of shotgun before the police by the appellant could not be regarded to be a search within the meaning of section 103 (ibid). The Honourable Supreme Court in Mir Muhammad v. State 1995 SCMR 614 had observed that association of two respectable inhabitants of the locality is not required in a case where I the accused himself leads the police to a particular place and gets the articles recovered. In view of the above, the recovery of shotgun does not suffer from any illegality or infirmity and the objection of the learned counsel to this effect is not sustainable. We have gone through the entire evidence and found no material contradiction, which could affect the merits of prosecution case. The inconsistencies referred by the learned counsel for the appellant are neither material nor of any consequence and could not be made grounds for securing acquittal as the same with the passage of time are bound to creep up in the depositions of the P.Ws. The Honourable Supreme Court in Allah Bakhsh v. Ahmed Din 1971 SCMR 462 had observed that "minor inconsistency in depositions of prosecution witnesses of inconsequential nature cannot reasonably be considered as good grounds in disbelieving independent and disinterested witnesses. If importance be given to such insignificant inconsistencies there can hardly be any conviction, for seldom is there a witness whose evidence does not suffer from such inconsistencies." For the foregoing reasons, we are of the view that the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court has appraised the evidence existing on the record thoroughly on the principles for appraisal of evidence in criminal cases for safe administration of criminal justice. The judgment is based on correct application of law and proper evaluation of evidence and, therefore, we see no reason to interfere in the findings of the learned trial Court. Consequently, the criminal appeal filed by Babar Shah, the convict-appellant is dismissed. His conviction and sentence of life imprisonment is maintained while Criminal Revision No.3 of 2004 titled Mst. Amina Bibi v. Baber Shah and another is partially allowed to the extent of enhancing compensation amount from Rs.50,000 to R.1,00,000 which shall be recoverable under section 544-A, Cr.P.C. However, the benefit under section 382-B, Cr.P.C. shall remain intact. Above are the reasons for our short order, dated 26-5-2005. N.H.Q./537/P????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.