HWAN KHAN Versus THE STATE
MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No. 76 of 1986 and connected Murder Reference No.16 of 1986 arise from the judgment of learned Additional Sessions Judge, Rahimyar Khan, whereby he on 10‑8‑1986 convicted Jiwan Khan (33), Godha (30), Jan Muhammad (28), Abdul Shakoor (25) and Ahmad Din (30) appellants under sections 148 and 302/149, P.P.C. for the murder of Abdul Karim (47) and sentenced them as under:‑‑
Under section 148, P.P.C.‑‑ Two years' R.I. each.
Under section 302/149, P.P.C.‑‑
(i) Jiwan Khan to death and a fine of Rs.5,000 in default thereof 2 years' R.I.
(ii) Godha, Jan Muhammad, Abdul Shakoor and Ahmad Din to imprisonment for life and a fine of Rs.5,000 each in default thereof 2 years' R.I.
It was directed that the fine when recovered half of it be paid to the legal heirs of the deceased as compensation.
2. The occurrence took place on 12‑1‑1985 at 4‑15 p.m. in village Khai Khair Shah at a distance of 6 k.m. from Police Station Zahirpir. District Rahimyar Khan. The F.I.R. is statement Exh.P.E. of Abdul Hakeem P.W.9, brother of the deceased which was recorded on the same day at 5‑15 p.m. at Chowk Zahirpir by Malik Turej Ahmad, Inspector/S.H.O. P.W.11. Formal F.I.R. Exh.P.E./1 was drawn up by Noor Ahmad, Head Constable P.W.6 on the same, day at 5‑30 p.m. The case was initially registered under section 307, P.P.C. Abdul Karim succumbed to the injuries on the same day at 7‑40 p.m. So, section 307, P.P.C. was converted into 302, P.P.C.
3. Godha, Jan Muhammad and Jiwan Khan appellants are real brothers. The relationship of Abdul Shakoor and Ahmad Din appellants with them is not on record. The motive as alleged by the prosecution was that 11 years back Abdul Karim deceased had injured Jiwan Khan appellant, hence this occurrence.
4. The prosecution case is that on the fateful day Abdul Hakeem P.W.9, Muhammad Siddiq (not produced) and the deceased were going from Basti Turk to their house situate in village Khai Khair Shah on a motor‑cycle. When they reached near Chah Piaraywala, the motor‑cycle slightly deflated, so, Muhammad Siddiq and Abdul Hakeem started walking on foot and Abdul Karim deceased drove motor‑cycle slowly. They had hardly covered a distance of about 2/3 acres, when they found the road blocked on account of the heap of cotton sticks. Abdul Karim alighted from motor‑cycle. The five appellants namely Jiwan Khan, Godha and Abdul Shakoor armed with hatchets, Jan Muhammad and Ahmad Din armed with Sotas emerged from behind the cotton sticks. Jiwan Khan and Godha gave hatchet blows on the head of Abdul Karim. Shakoor gave hatchet blows on the back of the chest of the deceased and on his legs. Abdul Karim fell on the ground, Jan Muhammad and Ahmad Din then gave soti blows on different parts of his person. The occurrence was seen by Abdul Karim, Muhammad Siddiq and Nathu P.Ws. When they tried to go near the deceased, the appellants threatened them with dire consequences and ran away from the place of occurrence taking weapons with them.
5. On 12‑1‑1985 at 6‑30 p.m. Dr. Shamas‑ul‑Zaman, P.W.1 examined Abdul Karim while he was alive. He found following injuries on his person:‑‑
"(1) An incised wound 8 x 1 c.m. x bone deep, edges were clean cut, on the side of scalp 10 c.m. above the right eye‑brow.
(2) An incised wound 2‑1/2 x 1/2 c.m. x bone deep on the right side of scalp 9 c.m. above the right ear. Bone was cut.
(3) An incised wound 5 x 1 c.m. x bone deep on the right side of back of scalp 8 c.m. from right ear.
(4) An incised wound 6 x 2 c.m. x bone deep on the middle of scalp on the posterior aspect 17 c.m. from the left ear.
(5) An incised wound 11 x 4 c.m. x bone deep, bone was cut, on the left scapula region, horizontal in direction 15 c.m. in the mid line of the back.
(6) A lacerated wound 1/2 x 1/2 c.m. on the front of left leg 9 c.m. below the left knee joint. Clinically fracture of bone present.
(7) An incised wound 7 x 3‑1/2 c.m. x bone deep on the front and outer side of right leg, 8 c.m. above the lateral malleolus.
(8) A bruise 7 x 3 c.m. on the outer side of right thigh 7 Em. above the right knee joint.
(9) Multiple bruises on the back of right thigh.
(10) A contusion 2 x 1‑1/2 c.m. on the front of right knee joint."
Injuries Nos. 1, 2, 3 and 4 were dangerous to life. Injuries Nos. 1, 2, 3, 4, 5 and 7 were caused by sharp‑edged weapon and the rest with blunt weapon. The tire between injuries and the examination was within 2 to 3 hours.
On the following day at 10‑45 a.m., the doctor conducted post‑mortem on the dead body of Abdul Karim and found aforesaid injuries on it. In his opinion, the death was due to injuries Nos. 1, 2, 3 and 4 causing fracture of skull bones and injuries to meanings and brain tissue leading to inter‑cranial and extra-cranial, haemorrhages, shock, circulatory and respiratory failure and death. The injuries were ante‑mortem and sufficient to cause death in the ordinary course of ‑ nature
6. The appellants were arrested on 28‑1‑1985 by Malik Turej Ahmad, S.H.O., P.W.11. On 1.‑2‑1985 Shakoor, Godha, Jiwan and Jan Muhammad appellants led to the recoveries of blood‑stained hatchets Exhs. P‑10, P‑13, P‑16 and Sota (not blood stained) Exh.P‑19 from their houses which were taken into possessions vide memoranda Exh. P.K. P.L. P.M. and P.N. respectively. The memoranda were attested by Bashir Ahmad P.W.8, Shabbir Ahmad (not produced) and Malik Turej Ahmad, S.H.O. P.W.11. On 8‑2‑1985 Ahmad Din got recovered sota Exh.P.20 (not blood stained) from 'house which was taken into possession vide memo Exh.P.O. The Chemical examiner s report Exh.P.Q. shows that the hatchets recovered from Abdul Shakoor, Godha and Jiwan Khan were stained with blood. It may be noted here that although Serologist report with regard to the hatchets Exhs.P.10, P.13 and P.16 was on record, yet, the same was not tendered in evidence by the learned A.P.P. The Serologist report reveals that the three hatchets were stained with human blood.
7. To prove its case prosecution examined as many as 11 witnesses. Abdul Hakeem P.W.9 and Nathu P.W.19 have giver. the ocular account of the occurrence. They supported the narration of the main occurrence, They claim to have seen the 5 appellants launching attack on Abdul Karim and causing injuries with their respective weapons on different parts of his body. Abdul Hakeem P.W.9 has also deposed about the motive of Jiwan Khan appellant to do away with the deceased. Bashir Ahmad P.W.8 and Malik Turej Ahmad, S.H.O P.W.1 have supported the recoveries of weapons from the appellants. Dr, Shamas‑ul- Zaman P.W.1, has proved the medico‑legal report of the injuries and the post mortem examination report of the deceased. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. In reply to Q.No.7, i.e. "Why this case against you and why the PWs. deposed against you"?
Godha appellant stated:‑
"Abdul Karim was a desperate criminal thief. He was killed by some unknown persons. The occurrence being unwitnessed one, I anti other co‑accused persons were apprehended and kept under unlawful detention and thereafter challaned due to suspicion. The witnesses are related to the deceased and the complainant."
The remaining appellants made almost similar statements. No witness was produced in defence. The appellants also refused to give evidence on oath in disproof of the charges against them.
9. The learned trial Court believing the motive, ocular evidence and the recoveries of the weapons has convicted and sentenced the appellants as stated above.
10. Learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubt, in that, the eye‑witnesses namely Abdul Hakeem and Nathu are interested as well as chance witnesses; that they were involved in criminal cases; that their evidence is in conflict with the medical evidence; that their names are not mentioned in the inspection note; that the name of Nathu P.W. is not mentioned in the inquest report; that they were not present on the spot, that the recovery of the weapons was effected 21 days after the occurrence and as such, the presence of blood on the hatchets was doubtful; that Bashir Ahmad P.W.8 was also related to the deceased; that no independent witness has been produced by the prosecution in proof of recovery of weapons from the appellants although Lambardar and Chowkidar were present at the time of recovery as admitted by Bashir Ahmad P.W.8; that the F.I.R. is doubtful; that Abdul Hakeem P.W. has stated in his evidence before the Court that he had lodged F.I.R. Exh.P.A. whereas Exh. PA. is carbon copy of the medico‑legal report of the deceased and not the F.I.R. On the other hand, the learned Assistant Advocate‑General has supported the judgment of the trial Court.
11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution the statements of the appellants recorded under section 342, Cr.P.C. and the circumstances appearing in the case, carefully. We find that it is a case of promptly lodged F.I.R. containing the names of the eye‑witnesses, names of the appellants/accused, the weapons carried by them and the part played by them during the occurrence. There is nothing in evidence to show that the F.I.R. Exh.P.E. was not a genuine document. Abdul Hakeem complainant stated before the Court that he had lodged F.I.R.Exh.PA., whereas Exh. P.A. is carbon copy of medico‑legal report and not the F.I.R. Dr. Shamas‑ul‑Zaman had appeared as P.W.1 and it was at the time of recording his statement that medico‑legal report was exhibited‑as Exh.PA., therefore, the question of exhibiting the F.I.R. as Exh.P.A. at subsequent stage, of recording statement of the complainant as P.W.9, did not arise. It seems to us that instead of exhibiting F.I.R. as Exh.P.E., it was inadvertantly recorded in the statement as Exh.PA. Had the medico‑legal report not been exhibited as Exh.PA. before recording statement of the complainant that the objection of the learned counsel relating to the F.I.R. might have been weighty. Failure on the part of the Court to exhibit F.I.R. properly does not signify its non‑existence. Abdul Karim was brought in injured condition in Tehsil Headquarter Hospital, Khanpur at 6‑15 p.m. He was examined by the doctor at 6 30 p.m. This shows that not only the F.I.R. had been registered by that time but the deceased was also not alone when he received injuries. The statements of the two eye‑witnesses namely Abdul Hakeem and Nathu cannot be discarded on account of their relationship with the deceased or because they were involved in theft cases. They had no motive against the appellants to involve them falsely to the case. So, they cannot be termed as interested witnesses. They have successfully faced the test of cross‑examination. The statertients made by them do .not suffer from infirmities such as material contradictions/major discrepancies or dis‑honest improvements. Their names are mentioned in the promptly lodged F.I.R. They have given plausible cause of their presence on the spot at the time of occurrence. The appellants were previously known to them. The occurrence took place in the light of the day, so there are no reasons to doubt that they saw the occurrence and were in a position to identify the offenders: The learned counsel Chas not been able to point out any conflict between the medical evidence and the ocular evidence. Now the further question arises as to whether they can be relied upon for convicting, the appellants without corroboration? In the peculiar circumstances of the case that as many as 5 persons have been involved in the case and that the two eye‑witnesses were involved in criminal cases including theft cases, the possibility that the number of the accused might have been exaggerated, cannot be excluded. So, we feel that the words of the eye‑witness should not be made the basis of conviction of all the appellants, and we should look for some additional circumstances which may corroborate their testimony C qua each appellant. The motive of incident in which the deceased had allegedly injured Jiwan appellant took place 11 years before the occurrence. No untoward incident between the parties took place during this interval. The alleged motive is thus far‑fetched, flimsy and imaginary as well. Furthermore, no case with regard to that incident was registered at the police station as stated by Malik Turej Ahmad, Inspector, P.W.11. In this view of the matter, circumstance of motive, cannot corroborate ocular testimony. It may be noted here that absence of motive does not condemn the case of the prosecution outright. In case of Ahmad Din and Jan Muhammad we do not see any additional circumstance which may connect them with the murder of the deceased. The Sotas recovered from them were not stained with blood. As for Jiwan Khan, Godha and Abdul Shakoor appellants, corroboration is available in the shape of incriminating recoveries of weapons of crime supported by trustworthy statements of Bashir Ahmad P.W.8 and Malik Turej Ahmad, S.H.O., P.W.11. Bashir Ahmad is paternal‑cousin of the deceased. He had no motive to depose against the aforesaid appellants, so he does not come within the category of interested witness. The statement of Malik Turej Ahmad, Inspector, P.W.11 should not be disbelieved because of the office he holds. They have withstood the test of cross‑examination. We do not see any infirmity in their statements. Malik Turej Ahmad P.W.11 has explained that the independent persons present at the time of recovery were not willing to become witness of recoveries. This explanation is a complete answer to the objection of the learned counsel for the appellant that Lambardar, Chaukidar and other independent persons present at the time of recovery were not produced by the prosecution. The Chemical Examiner's report shows that the three hatchets were stained with blood. The Serologist report which is on record also reveals that the three hatchets were stained with blood. This Court can take judicial notice of documents which do not require formal proof. The delay of 21 days in the recovery of blood‑stained hatchets from the three appellants does not damage the circumstance of recovery of blood‑stained hatchets because there is nothing in evidence to show that they had remained in their houses during the interval between the occurrence and the recoveries. We are convinced that the reliable recoveries of blood‑stained weapons furnish adequate corroboration to the ocular evidence qua three appellants and successfully connect them with the murder of the deceased.
12. This brings us to the question of sentence of Jiwan appellant. Since there is a vast difference between life and death, so we have considered this question with utmost care on our part. We find that there are mitigating/extenuating circumstances in his favour for lesser penalty. The death had occurred due to four incised wounds infected by him and Godha appellants on the head of the deceased. Godha has been awarded imprisonment ‑for life. We have already observed that the motive alleged by the prosecution was weak and imaginary, the case of Jiwan appellant was/is not distinguishable from that of Godha appellant We propose to treat them equally in the matter of sentence.
In pursuance of the above discussion while giving benefit of doubt to Jan Muhammad and Ahmad Din appellants, we acquit them of the charges. They shall be released forthwith, if not required to be detained in any other case. Godha, Jiwan and Abdul Shakoor are acquitted of the charge under section 148, P.P.C. The sentence of Jiwan is altered from death to imprisonment for life. The sentence/imprisonment for life awarded to Godha and Abdul Shakoor by the trial Court under section 302, P.P.C. are maintained. The fine imposed by the trial Court on the three appellants, the sentences in lieu thereof and the direction that the fine when recovered half of it be paid to the legal heirs of the deceased are maintained. Death sentence is not confirmed.
SA./J‑34/L Appeal partly accepted.