2005 PLP 486 (MLD)

Deceased:

1. Large approximately 20 cm lacerated wound over right arm which shattered the bones and muscle and tissues.

2. A wound of entrance in right exila about 1 cm there is no wound of exit.

3. Two wounds about 2" x .1 " on right fore‑arm.

4. Anterior aspects of right thigh a lacerated wound of about 12 c. m. x 12 c.m. and 6 x 6 c.m. The margin of wound were burnt. Cause of death: ‑Hypovolemic shock. Nature of weapon:‑Gun shot (fire‑arm).

2. P.W.2 Khan Muhammad. He reiterated the contents of the F.I.R. and gave ocular account of the incident.

3. P.W.3 Syed Nasir Shah also gave ocular account of the incident. He himself was also injured in the incident.

4. P.W.4 is the First Investigating Officer, who after carrying out initial investigation entrusted the same to P.W.5.

5. P.W.5 Lal Khan, the second Investigating Officer recovered the vehicle vide memo. Exh.P/5‑A, which was allegedly used in the commission of offence.

6. P.W.6 Rehmatullah S.I. arrested appellant Sher Jan and submitted challan.

7. P.W.7 Muhammad Ayub, Constable. He is the marginal witness to recovery memos. Exh.P/4‑A to 4‑D. Thereafter the prosecution closed its side and appellant was examined under section 342, Cr.P.C. wherein he denied the prosecution case. However, he did not opt to give statement on oath as provided under section 340(2), Cr.P.C. nor led any evidence in defence. On the conclusion of trial, learned Special Judge, STA, convicted and sentenced the appellant, as specified hereinabove. Mr. Muhammad Aslam Chishti, learned counsel for appellant, challenged the validity of the judgment on the following points:‑‑ (a) Delayed statement of P.W.3 Nasir Shah, is to be excluded from consideration; (b) P.W.2 Khan Muhammad and P.W.3 Nasir Shah, undoubtedly, being interested witnesses, and further their evidence does not find corroboration from any independent material, therefore, their testimony is liable to be expelled. (c) Appellant had no motive to commit the offence. (d) P. Ws.2 and 3 have motive to falsely implicate the appellant. (e) Appellant had credible documentary and oral evidence in support of his plea of alibi but opportunity of leading defence was not afforded to appellant. (f) Investigation of two Investigating Officers support the defence plea, was not considered. Malik Sultan Mehmood, learned Assistant Advocate‑General, opposed the plea by arguing; that; incident took place in broad‑daylight, thus there was no ground for substitution of the appellant. Besides the delay in recording the evidence has been satisfactorily explained. Both the eye‑witnesses have corroborated each other on material points and their evidence being confidence‑inspiring, cannot be discarded. Further no request was made for leading evidence before the trial Court nor any document was filed, thus the plea of alibi was afterthought. Coming to the contention of Mr. Aslam Chishti, learned counsel that, since P.W.2 Khan Muhammad and P.W.3 Syed Nasir Shah are interested witnesses, therefore, no reliance can be placed on their statements, without any independent corroboration, Before dilating upon the said contention, it may be observed that, it is settled proposition of law that, an interested witness is one, who has animosity towards accused and mere relationship with the deceased is not enough to discard his testimony and in fact it is the inherent worth of the testimony of a witness to determine his credibility. In this regard reliance is placed on Raqib Khan v. The State and another (2000 SCMR 163). As regards corroboration, it is not an absolute principle that statement of a witness related to deceased should be corroborated, However, the statement of a worst enemy could be relied upon, if it inspires confidence and intrinsic worth of a statement is not shaken. It may be observed that mere relationship of the witnesses with the deceased is no ground for discarding their statements, when otherwise their statements are confidence‑inspiring and are corroborated with independent witnesses. The next contention of Mr. Muhammad Aslam Chishti, learned counsel, was that, since P.Ws. Khan Muhammad and Syed Nasir Shah, had a motive to falsely implicate the appellant, therefore, their testimony is liable to be ruled out of consideration. Learned counsel stated that since appellant Sher Jan was a witness in the murder case of Jan Muhammad, being Crime No.79 of 1999, the deceased brother of absconding accused Khan Muhammad, and he appeared as a witness against the P.Ws., who were accused in that case, therefore, they have falsely implicated him. It may be mentioned here that motive can be used as a double‑edged weapon, cutting both sides. We have been informed that murder case of Jan Muhammad was tried by learned Sessions Judge, Loralai, wherein P. Ws.2 and 3 were acquitted of the charge. Suffice it to observe that in the said case, appellant Sher Jan was witness herein he deposed against the P.Ws. who were acquitted of the charge thus inference can be drawn that in the said case, appellant had a motive to falsely implicate them, as they were acquitted and said judgment as per contention of learned counsel was also not challenged in appeal, which has attained finality. Now applying the above principles to the present case, by testing the credibility of P. Ws. 2 and 3 on the touchstone of the principles laid down by the superior Courts. Admittedly both the witnesses were present at the place of incident. Inasmuch as P.W.3 Nasir Shah also sustained serious injuries, whereby he was shifted to Dera Ghazi Khan Hospital and from there to Nishtar Hospital, Multan, where he remained under treatment for a considerable long period. The incident occurred in a broad‑daylight and the injured as well as deceased were fired at from a very close range. The medical certificate of deceased supports the said fact. Besides, P. W.3 was also injured in the instant case, therefore, it can hardly be conceived that he would let got the actual culprit and would falsely implicate the appellant. It may be observed here that the phenomena of substitution is very rare, and in the given facts and circumstances of the instant case, it is absolutely unbelievable. Both the witnesses have unequivocally attributed the role of firing to appellant Sher Jan and absconding accused Rabba and Khan Muhammad alias Khannay, whereas injuries sustained by injured were attributed to absconding accused Muhammad Khan. As observed hereinabove, the firing was made from a close range in a broad‑daylight, thus, there can be no case of mis‑identity. Besides the witnesses were put to a lengthy cross‑examination, but nothing favourable could be extracted to impeach their credibility. As far as question of being interested witness is concerned, that is immaterial, as observed; the Courts have to see, whether the intrinsic worth of the statement has been shaken or otherwise. In the case in hand, both the witnesses have corroborated each other on material points and further their testimony is in consonance with the medical evidence. Thus on independent reappraisal of the evidence, no infirmity was found in the judgment of trial Court, whereby the testimony of said witnesses was accepted. In this regard, we are fortified with the case‑law reported as `Pira v. State' (1998 SCMR 1749). Regarding the question of motive, it may be pointed out that, crime can be committed without any motive and the best motive is always in the mind of a person committing the crime. Thus the contention of learned counsel that appellant has no motive to do away with the deceased has no substance and is accordingly repelled. As observed hereinabove that, motive is a double‑edged weapon cutting both sides. Appellant was a witness in the case of Jan Muhammad, whereas P.W.2 Khan Muhammad and P.W.3 Syed Nasir Shah, were accused. They were acquitted by the learned Sessions Judge, Loralai, and possibility cannot be ruled out that appellant had a motive to eliminate the deceased and injured at any cost. It may further be pointed out that appellant remained absconder for a considerable period and no explanation has come on record to give sufficient explanation for being a fugitive of law, during this period. Thus the abscondence can be considered as a corroborative piece of evidence, lending support of the involvement of appellant in the commission of offence. It may be observed that along with the appeal, an application under section 428, Cr.P.C. was also filed for additional evidence wherein it was pleaded that at the‑time of commission of offence, the appellant was admitted in Nishtar Medical Hospital and permission was sought to place the record of said hospital. The said application was rejected vide order dated 13‑8‑2002. It is worth‑mentioning that, though the said application was dismissed, but we have also examined certain documents, placed on record, indicating that, on the day of incident, appellant was under treatment in Nishtar Medical Hospital. It may be Observed that appellant was examined under section 342, Cr.P.C. wherein he has not stated a single word about his admission in the Hospital on the day of incident. Inasmuch as the said documents regarding admission in the hospital were not even placed on record though he was represented by a counsel, before the trial Court. Besides request was made before the trial Court for examining the Doctor, under whose treatment the appellant was. Thus the plea of alibi being afterthought is rejected. The said question has been very well addressed by the trial Court in detail, requiring no further discussion. It was also the contention of learned counsel that, since the statement of P.W.3 Syed Nasir Shah was recorded at a belated stage therefore, the same is to be ruled out of consideration. There is no cavil to the proposition that if the statement of a witness is recorded after some delay, the same is to be kept out of consideration, if no plausible explanation is given for the same. It may be pointed out that said principle is not attracted in the instant case. P.W.3 after sustaining injuries was taken to Dera. Ghazi Khan and from there to Nishtar Medical Hospital, where his statement was recorded by the Investigating Officer and there was occasion for him to have come and got recorded his statement. The Investigating Officer who recorded his statement was cross‑examined at length, who stated that, he could not get permission from his superiors to go an record his statement and as soon as he got permission, he went to Nishtar Medical Hospital, Multan and recorded the statement of witnesses. Thus in our considered view, the delay has been satisfactorily explained. Mr. Muhammad Aslam Chishti, learned counsel, vehemently argued that the two Investigating Officers who conducted the investigation of the case, stated that as per their own knowledge the prosecution version was not true. In their statement they deposed that, they were informed that firing was done by one person. It may be pointed out that said opinion of the 'Investigating Officers is not binding. A deep scrutiny of the record indicates that Investigating Officer had not conducted the investigation properly. Admittedly many persons were present at the place of occurrence, but they did not make efforts to record statement of independent witness. Besides their statement is based .on hearsay, as they only deposed that they came to know at the place of incident that the firing was done by one person, but they have not stated that as to who informed them nor they recorded the statement of such person. Thus in such view of the matter, their opinion, being weightless is not acceptable and even otherwise it is not binding on the Court. In view of the above discussion and after minute scrutiny of the statements of P.Ws., the material collected by the prosecution establishes the guilt of appellant, and taking into consideration all the circumstances of the case that lends strong support to the prosecution case, in our con sidered opinion, the ocular evidence is true, confidence‑inspiring and satisfies, the conscience of the Court. Consequently the appeal being devoid of merits is dismissed. H.B.T./36/Q Appeal dismissed.