P L D 1975 Peshawar 43 (PLP)

ABDUL HAKEEM KHAN, J.

By his order dated 17-8-1973, - Mr. Muhammad Ishaq Khan, Sessions Judge, Peshawar, found Rustam Khan (20) son of Muslim, of Sheikh Muhammadi, Tehsil and District Peshawar, guilty for the murder of his co-villager, Fazlullah (40/45) son of Sharif- ullah, by firing at him on 15-12-69 at 'Maghrib Azan Wela' and sentenced him to death under section 302 of the P. P. C. The convict has preferred the present appeal and there is also a murder reference for the confirma tion of the death sentence, imposed upon the appellant. This order will dispose of the murder reference as well.

2. The prosecution story in brief is that while Sharifullah (P. W. 8) and his son, Fazlullah deceased were present in their house and so was Rasool Khan (P. W. 9) who happens to be a Tarboor of Sharifullah and lives in the same enclosure that the prayer call for 'Maghrib' was announced in the mosque. Thereupon they set out for the mosque and Fazlullah deceased being ahead by few paces. When they reached the street of Zakriya Khan, Rustam Khan appellant armed with a shot-gun was seen overtaking them. Rustam had gone a few paces and was near Fazlullah deceased that he fired at him and the latter fell injured on the Bound. A hue and cry was raised and this attracted Akbar Shah and Usman Shah (P. Ws. 10 and 11 respec tively) who were sitting in the 'hujra' of Zakriya Malik. The eye-witnesses as also the deceased himself narrated the occurrence to them before that the villagers arrived. The deceased was carried on a 'cot' from the scene after 20/30 minutes' stay in the hujra of Zakriya Malik placed in a tongs enroute to police station. However, when the tonga was still on the 'Kacha road' and the 'Pakka' one was a little ahead that Fazlullah expired. Thereupon the tonga was redirected to the village and the body was brought back to home. After this Sharifullah (P. W. 8) father of the deceased boarded the tonga once again and left for the police station where he lodged the First Information Report (Exh. P. A.) at 19-45 hours.

3. Motive for the crime is that Rustam, appellant, suspected that his father had been murdered by Fazlullah deceased about three years prior to the occurrence.

4. The prosecution has produced Sharifullah, farther of the deceased and Rasool Khan, a son of Sharifullah's paternal uncle, as the eyewit nesses of the occurrence. Akbar Shah (P. W. 10) son-in-law and Usman (P. W. 11) a cousin of Sharifullah, have been produced to show that they saw the appellant decamping while armed with a 'topak' after the incident and when they approached Fazlullah deceased, the latter and the two eye witnesses charged the appellant for the crime. Apart from the aforemen tioned witnesses, the prosecution relies on the abscondence of the appel lant for more than 2 years after the occurrence, precisely speaking from 16-12-1969 to 5-9-1972; the last mentioned being the date on which the appellant surrendered before the Deputy Commissioner.

5. The appellant pleaded not guilty and denied that Sharifullah (P. W. 8) was the first cousin of his father-he stated that Sharifullah was the step maternal uncle of his father. He explained that at the time when his father was murdered he was young and that he did not suspect Fazl ullah deceased for the murder of his father. He further stated that he did not abscond and that a few days prior to the occurrence he had gone with his maternal uncle at Landi Arbab and surrendered when he came to know of the charge against him. He added that Sharifullah, Rasool Khan, Akbar Shah and Usman (P. Ws. 8 to 11) were deposing against him falsely because they were closely related and their aim was to inherit his property because he had no other close relation and the said witnesses happened to be related to him distantly. No defence was produced.

6. It will be seen that though the appellant admits that the deceased and the four witnesses produced by the prosecution in this case we refer to P. Ws. 8 to 11, are distantly related to him, he wants us to believe that his relations were certainly not inimical. This inference flows from his assertion that he did not suspect Fazlullah deceased for the murder of his father. Needless to say, that except for the allegations of the prosecution that the appellant suspected Fazlullah deceased for the murder of his father, there is not an iota of evidence on the record to show that the complainant party bore any enmity toward the appellant. In this state of record, even if Sharifullah (P. W. 8) was the step maternal uncle of the appellant's father, it would not stand to reason that he would have charged the appellant, for the murder of his son, despite the former's innocence. In the first place, substitution of the real culprit with a near relation not on inimical terms is almost unthinkable and in the second and last place we fail to appreciate how could Sharifullah get anything by way of inheritance from the appellant if he happened to be the step maternal uncle of the appellant's father.

7. It is true that the witnesses produced by the prosecutions are closely related inter se. As already indicated Rasool Khan and Usman (P. Ws. 9 and 11 respectively) happen to be the sons of a paternal uncle of the father of the deceased while Akbar Shah (P. W. 10) is the son-in-law of the father of the deceased, who himself has appeared as P. W. 8, but we cannot over look that they are also related to the appellant who, according to Sharif ullah (P. W. 8) is a son of his first cousin. Furthermore, there is nothing unusual in the conduct of the four witnesses and they are, therefore, the natural witnesses of the occurrence. Rasool Khan (P. W. 9) lives with Sharifullah (P. W. 8) in a common house albeit in a separate Kotha and it is quite understandable that Fazlullah who also living in that very house with his father. It is but natural that when they heard the 'Azan' from a mosque towards the North of their house, distance being 150 paces or so, they all should have got up and proceeded towards the mosque. It is conceivable that the deceased who was younger of the two Sharifullah and Rasool Khan being 80 and 55 years respectively stole a march over them and was leading by a few paces when the fire was opened. There is also nothing extra ordinary in the assertion of Akbar Shah and Usman (P. Ws.), when they stated that they were sitting in the 'hujra' of Zakriya which also belongs to them. This 'hujra' is just near the mosque and it will be highly improb able that though hue and cry was raised by the father of the deceased and Rasool Khan, they would not have rushed towards the scene of occurrence which is about sixty paces from the 'hujra'. It also appears to us to be natural that when Akbar Shah and Usman arrived at the scene, they should have inquired from the deceased and the eye-witnesses about the occurrence and since they happened to be the close relation of the deceased, a candid and forth-right statement charging the appellant cannot be suspected.

8. The learned counsel for the appellant invited our attention to the dictum of their Lordships in Thoba and another v. The State (P L D 1963 S C 40), and proceed ed to say that ocular evidence being interested and partisan should not be believed, for, on a capital charge evidence must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to evidence of interested or partisan witnesses. We have had the benefit of going through the authority cited and would like to refer to the first paragraph on page 42 of the report wherein their Lord ships have observed that the witnesses and the deceased were not only closely connected inter se but were also inimical to the appellant, for, there was a blood-feud between the deceased and the appellant. The authority of the Supreme Court is, therefore, distinguishable on the short -ground that in the instant case there is nothing on the record to suggest that the eye-witnesses were inimical to the appellant or had a blood-feud with him. Rather it appears to us that the facts of the instant case are more analogous to the one in Muhammad Gul v. The State (1970 S C M R 797), where the convic tion was based on the testimony of Ghulam Qadir (P. W. 10) who was the son of the deceased, Muhammad (P. W. 11), who was a utrine brother of the deceased and Mehr Muhammad (P. W. 12) who was a paternal uncle's son of the deceased. In that case also the appellant had greater grievance against Ghulam Qadir (P. W.) but he was spared and again there was a long delay in the lodging of the F. I. R. at 4 a.m. of the next morning while the occurrence was stated to have taken place at `Khuftan' time. Furthermore, by remarkable coincidence the attack in that case also took place when the deceased was going alongwith the P. Ws. to offer his prayers m the mosque. The three objections which have been taken on behalf of the appellant in this case, were also taken in that case and their Lordships observed that the witnesses appeared to be natural witnesses; the delay in the lodging of the F. I. R. was inconsequential as the prosecution did not gain anything of it only one assailant was named sand there was no previ ous background of enmity between the parties; and the fact that Ghulam Qadir who should have been the first target though present on the scene of occurrence, was spared, might be due to the peculiar psychological condi tion of the accused at the time of the incident. Before we conclude our discussion on the point, we should like to advert to two authorities cited on behalf of the appellant, namely, Sher Muhammad and another v. The State (1971 P Cr. L J 381) and Ali Nawaz and another v. The State (P L D 1971 Kar. 197). The occurrence in Lahore case was a mid-night assault in dark part of the night and a refer ence to paragraphs 10 and 11 of the report will clearly establish that the witnesses were inimical. This is why their Lordships concluded paragraph 11 of the judgment observing "it is thus clear that Usman had a motive to depose against Sher, appellant. Allah Wasaya too cannot be held to be disinterested. He is definitely inimical to Mahmood Khan, appellant. Kaloo (P. W.) also admitted the enmity with Mahmood Khan, appellant, who appeared as a witness against him and others in a criminal case". Furthermore, in the said case their Lordships placed it on the record that the story narrated by the eye-witnesses as to how they saw the assault on the deceased in a dark night, suffered from a number of infirmities making it improbable to believe. In Karachi authority the occurrence was also a mid-night incident and his Lordship arrived at a clear finding that the testimony of the solitary witness was unnatural, discrepant and contradic tory in more than one respect. On the other hand, the defence version appeared to be more probable. It was in these circumstances that benefit of doubt was extended to the appellant in that case.

9. To sum up, it may be stated that relationship inter se of the fou4 witnesses in this case is not by itself a circumstance which should discredit their testimony altogether.

10. The learned counsel for the appellant invited our attention to the testimony of Dr. Muhammad Iqbal Lodhi (P. W. 1), which shows that apart from the following external injuries: (1) Fire-arm entrance wound on the right side of the back of chest 1F right lateral to V. Column size 1 " x 1 ' at level of first lumber vertebra. (2) Group of three fire-arm exit wounds on right side of the front of chest four inches below the right nipple covering area of 3" x 3' size of each was " x ". (3) Pellet entry wound " x ' on right wrist. On internal examination thorax walls, ribs, cartilages, pleuras, peritoneum, diaphragm, large intestines and stomach were found injured. Further more, the stomach was full of semi-digested food material and that, having regard to the injuries of the deceased he must have bled profusely and blood should have fallen at the spot. In this context it may be mentioned that according to the doctor time between injuries and death was 20/30 minutes and between death and post-mortem was 16 to 18 hours. Further-more, he corrected himself that underneath external injury No. 3, fracture of the right radius was discovered. The object of the learned counsel was to lay foundation for an argument that since the stomach was full of semi-digested food material the occurrence actually took place at `Khuftan' prayers' time, as has been deposed by Malak Zakriya (P. W.) and as such the assailant was unidentified. This argument also gets support from the admission of Sharifullah (P. W. 8) that Fazlullah came home after finishing. his zamindara work at about sun-set time and that they left for the mosque before taking evening meals. The learned counsel contended if what Sharif- ullah (P: W.) had stated was true the stomach would have been found empty and since it is not the case, it would follow that the occurrences took place at `Khuftan' prayers' time. The time between death and post mortem, viz., 16 to 18 hours, given by the doctor is not going to be con clusive, for, that will place the occurrence either at `Maghrib time or at Khuftan' time. It comes to this that the crucial point will not stand resolved by the statement of the doctor regarding the time intervening the death and post-mortem.

11. Question arises as to whether the discovery of semi-digested food material in the stomach will lead to the inevitable conclusion that the occurrence took place at `Khuftan' time and, therefore, the four witnesses produced by the prosecution would forfeit credit. That the state of stomach contents is not conclusive on the time of death, will be supported by the well-known writers on medical jurisprudence. Mr. N. J. Modi in his famous treatise on Medical Jurisprudence and Toxicology, Thirteenth Edition, page 152, says what follows: "It has been ascertained by physiologists that a mixed diet containing more of animal food and less of vegetable food as ordinarily taken by a European leaves the stomach in four or five hours after it is completely digested, while a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its digestion. But this cannot always be relied upon in determining the time of death, inasmuch as the power of digestibility may remain in abey ance for a long time in states of profound shock and coma. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty-four hours afterwards. In one case the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a time after death." After giving a table which gives approximate time for digestion of various food materials Taylor in his book titled "Principles and Practice of Medical jurisprudence", page 292 administers the following note of caution: "The table must not be taken as of mathematical certainty, but may represent fair averages, and hence the first great doubt of the value of the data. The rate of digestion varies with different individuals and with the state of the gastric mucosa. It is slower in states of coma and insensibility. Again, it must be remembered that death does not at once cause the process of digestion to stop, as we know that the stomach can even digest itself after death. With all this uncertainty, too much stress must not be placed on such evidence; it must be weighed alongwith all other items."

12. The above-quoted observations of the two famous authors find ample support from case-law on the subject. In Shahidullah Khan and others v. The State (P L D 1961 Dacca 1), murder allegedly took place early in the morning but partially digested rice was found in the stomach of the deceased. Their Lordships believed the evidence produced at the trial even though at the investigation stage evidence to that effect was not given and held that the deceased had taken his meals after mid-night. But in spite of this, their Lordships proceeded to make the following observation "We should also like to observe that it is impossible to dogmatise about the number of hours which an individual person will take to digest food. This will depend upon various factors some of which may not be known to the medical man. It is also common knowledge that if food is taken at mid-night or thereafter, it is not so easily digested as food taken in the early part of the night. It is also common knowledge that if one is in a perturbed state of mind, one's digestion is disturbed. We do not, therefore, think that the finding of some partially digested rice in the stomach of the deceased Wahed Ali Mridha negatived the prosecution case with regard to the time of the occurrence." In Ali Sher v. The State (P L D 1966 Lah. 368), there is a case in which the occurrence took place at night when the inmates of the house were asleep but the stomach .of the deceased was found with semi-fluid paste of cream colour. The learned counsel for the appellant in that case argued that in this state of medical evidence the deceased was put to death at about 11 p.m. but their Lordships hesitated to fix the time of death on that basis and said: "Again we cannot overlook the fact that the idea of time with illiterate village folks is often very vague and such folks cannot be expected to give the time with mathematical accuracy. Besides the state of digestion or the condition of the stomach is sometime used as a means of fixing the hours of death, but we have great doubt if it is a reliable test. Besides the process of digestion is affected by various factors. Sometimes fear or shock can retard digestion to an appreciable degree. The digestion disorder may be another factor. In the absence of full and reliable data on the point involved, it would, therefore, be futile to make any attempt, to find out by this method the exact time of the death of the deceased."

13. The above view of law on the point of determination of the time of death with reference to the stomach contents is in accord with the weighty observations of the Supreme Court of Pakistan in Allah Bakhsh sand another v. The State (1968 S C M R 672), which read :- "In this context, he has drawn our attention to the fact that according to the doctor, who performed the post-mortem examination of the dead body of the deceased, the latter's stomach was empty. The argument is that this is not consistent with the occurrence which took place at about 9 a.m. on the 11th March 1966." However, the learned counsel concedes that there was no evidence to show as to when, if at all, the deceased had eaten anything that morning. Nothing, therefore, turns on the mere statement that the deceased's stomach was found to be empty at the time of the autopsy."

14. In this context it will be useful to refer to the following observa tions made in Thakur and others v. State (A I R 1955 All. 189), which, it seems to us, have also been followed in Sabir Hussain and 2 others v. The State (P L D 1968 Lah. 1344): "Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution witnesses un-reservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence. The first method can be applied only in those cases where the oral evidence is above approach, and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method." That the time indicated by the doctor is merely a conjecture and, therefore, it cannot be conclusive in the face of ocular testimony of reliable and worthy character, is also supported by an authority from Karachi in Haji and 4 others v. The State (1972 P Cr. L J 465). It is only when the oral testimony is of impeachable character that it has got to yield before the expert testimony as in inexorable laws of nature. It may be mentioned that in Allahabad case seven persons were charged for seven injuries upon the deceased and their Lordships were of the view that there was some room for suspecting that some of the appellants have been falsely implicated in that case. In P L D 1968 Lah. 1344 ibid as well ocular evidence was not of irreproachable character. And so is the case in Abdul Qadir v. The State (1973 P Cr. L J 887). In this case though the occurrence was said to have taken place round about sunset time, the F. I. R. was not lodged till 11-30 a.m. of the next day, though the distance between the `wardat' and the Police. Station was sixteen miles. Furthermore, there was also evidence to show, that the family was accustomed to two meals, that is to say, at about mid day and sometime in the night and, therefore, discovery of semi-digested food was taken as a circumstance which reflected on the testimony of the eye-witnesses. It may be mentioned that in 1972 P Cr. L .T 465 oral witnesses being trustworthy were believed against the medical testimony and the later was ruled out as only conjectural.

13. The remarkable thing about the present case is that though there is, admission of Sharifullah (P. W.) that the, deceased did not take his meals when he came, back at about sunset time, that is to say, before his death; it cannot be overruled straightaway that he did not have any meals whatsoever 2/3 hours prior to his death at Maghrab. It seems to us that if a man is out in the fields he may take his morning tea at the house or in the fields. As is generally the case if a person does not return to his home, his morning meals are taken to the fields and since such meals are taken an hour or so before the noon, we will not be surprised that the deceased had taken the remnants of his food at late `Peshin' time. If this was not the case it must have happened that for one reason or other the deceased 1 took a very late lunch. It is true that the prosecution has not brought any evidence on the record to show that some food was taken by the deceased actually about late `Peshin' time but this omission cannot discredit the account of the four witnesses which, as already held, appeared to be straightforward and candid:

16. There is yet another circumstance which leads us to the conclusion that the occurrence did not take place at `Khuftan' time and that is that though it is on the record that Fazlullah, deceased, was lying in an injured state for 20/30 minutes in the `hujra' of Malak Zakriya, report was lodged at the police station five miles away, at 7-45 p m. It would have been impossible to report the matter at the said hour when it is conceded that about 3 miles of the road is `kacha'. What could the prosecution expect by advancing the time of the occurrence to evening prayers' time. In that case they bad to explain the delay, in the F. I. R. as they have tried to do so when they have stated that the injured man was carried in a tonga for about three miles and when he expired, his body was brought to the village and it was thereafter that Sharifullah (P. W.) proceeded to the Police Station to lodge the report. It was argued that by so doing they wanted to get over the difficulty of identification in a dark night, but it seems to us that carrying of a lantern would have been more convenient device than to have asserted that the injured person was carried in a tonga and that his body was brought back to the village when he expired and it was then that Sharifullah (P. W.) left for reporting the matter to the police.

17. It was contended on behalf of the appellant that it was quite extraordinary to say that the injured man was taken for over three miles in a tonga towards the police station and when he expired his body was brought back but for this a precedent is available in the facts contained in 1970 S C M R

797. To us, there appears to be nothing unnatural in bringing back the body of the dead person to the village, for, after death there was no emergency to rush him for medical aid and to the Police Station. Perhaps it was more convenient for the complainant party to have brought the dead body to the village than to have left it at the Police Station. If the explanation given by the prosecution is taken into account, there hardly appears to be any delay in the lodging of the report. The occurrence is said to have taken place when `Maghrab Azan' was pronounced and this will place it at about 5-15 p.m. on that day. It is but natural that 20 to 30 minutes should have been taken, as has been said by Malak Zakriya (P. W.) in arranging for the tonga. Six miles by tonga on `Kacha' road on a dark night should mean at least an hour. This means that when the body was brought back to the village it was already quarter to seven. The fresh journey to Police Station undertaken by Sharifullah (P. W.) complainant, should have taken him an hour or so and, therefore, the report at 7-45 p.m. is quite in time. Again, when we see that the Sub-Inspector who proceeded in a truck to cover two miles `Pakka' road also could not reach the spot till about 10 p.m., we find that there was no delay whatsoever in lodging the report.

18. We should like to bring it on the record that the learned trial Judge is right in disbelieving Malak Zakriya when he stated that the occur rence took place at about `Khuftan' time Malak Zakriya was produced to prove the recovery of pellet (Exh. P. 5) from the spot and he showed a soft corner for the appellant in reply to the very first question of the cross examiner he stated that he heard the hue and cry when he had offered `Khuftan' prayers. It was in reply to a Court question that the witness admitted that the appellant was the son of his nephew.

19. Before we discuss the abscondence of the appellant, we should like to repel the argument of the learned counsel for the appellant that the scene of occurrence was not the one given in the site plan (Exh. P. B.) because no blood was discovered from that place. Absence of blood from the spot can be attributed to soaking of the blood in the clothes that were worn by the deceased. It was winter. It might 'have also happened that people came to the spot and the blood traces was lost due to trampling over. In any case one thing will fix the locale and that is recovery of pellet (Exh. P. 5) from point No. 5 which is at a distance of 7 paces from the place where the deceased, Fazlullah, was hit.

20. The occurrence took place on 16-12-1969, Matiullah F. C. (P. W. 3) has stated that he was entrusted with the search warrant Exh. P. 2 under sec tion 204 but he could not find the appellant. Furthermore, he is on the record to have stated that proceedings under section 87 of the Cr. P. C. were taken and that proclamation was duly made. The testimony of Matiullah is corro borated by Said Ahmad Shah (P. W. 12) who was then S. H. O. Badhber. The last-named witness has added that record under section 512 of the Cr. P. C. was prepared due to non-availability of the appellant. The appel lant has no doubt surrendered himself on 5-9-1972, but his contention that he remained with his maternal uncle at Landi Arbab which is less than 10 miles away from the scene of occurrence and did not come to know of the charge for good two years, eight months and nineteen days, does not stand to reason. After all he was related to the deceased and as such could not remain unaware of his death and consequent charge.

21. On the view of the matter that we take, we agree with the learned trial Judge that the appellant is guilty for the murder of Fazlullah, deceased. The sentence of death imposed upon him does not call for any interference. It was a cold-blooded murder by a fire-arm. We dismiss the appeal and confirm the death sentence. K. B. A. Appeal dismissed.