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Petitioner: THE STATE VS Respondent: WAZIR KHAN and anothers
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Raja Fayyaz Ahmed Title: THE STATE vs WAZIR KHAN and anothers Case No.: Criminal Appeal No,67 and Murder Reference No,4 of 1997 Date of Judgment:1997-05-13 Reported As: 1997 P Cr. L J 1673 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMAD, J.---The learned Sessions Judge cumSpecial Judge (S.T.A.) Court, Loralai has forwarded this Murder Reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to the convict Wazir Khan son of Muhammad Noor under section 302(b), P.P.C. (as amended) vide judgment, dated 28-3-1997. The appellant/convict has also challenged his conviction recorded by the learned Court vide the aforesaid judgment by preferring separate Appeal No,67 of 1997, therefore, we propose to dispose of the reference and the appeal by this common judgment. 2. It is the case of the prosecution as per F.I.R. (Exh.P.G.), dated. 7-7-1995 lodged by P.W.4 Abdul Salam with the Police Station, Zhob to the effect that he lives with his father in the Zaris garden (Baghicha) and his father works as 'Bazgar' in the garden and at about 8-00 p.m. While he along with his father (Sanzar 'Khan) reached opposite to the College Mohallah after having a round of the garden three persons including the convict Wazir Khan son of Muhammad Noor Levies employee armed with a Klashnikov, were standing in segregated position while the other two could not be identified by the complainant and when the complainant and his father reached near to the convict, the deceased offered 'Salaam on him who in response replied that he will not he spared and fired four shots from his Klashnikov on the father of complainant who fell down on the ground having sustained bullet, while the complainant ran towards the College Colony being horrified, whereas; the convict along with his two companions also made good their escape from the site. ' The complainant P.W.4 describing the motive for the commission of the offence stated in his report that a few days back Wazir Khan (convict) had brought his cow to their house for crossing it with the bull kept by his father and his father had charged Rs,100 for the purpose from Wazir Khan,
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who on the same day again brought his cow for crossing but his father did not allow for such crossing of the cow due to which exchange of bitter words between the two happened and according to the complainant it was a grudge in the mind of Wazir Khan due to which he along with his two helpers murdered his father by firing. During the investigation consequent upon registration of the case P.W.5 Amir Muhammad Khan S.I.P. Visited the site of occurrence and got the site map Exh.P.H., inquest report Exh.P.I. Prepared. He also secured the blood-stained earth. Two empties of China rifle on a cap and Chaadar from the place of incident vide recovery memos. The blood-stained clothes of the deceased were also taken into possession vide recovery memo. Exh.P.C. And the dead body were sent to the hospital for autopsy. The convict Wazir Khan was arrested on 21-5-1995 and his father Muhammad Noor was arrested on 4-6-1995 by the police who produced China. Rifle which was taken into possession vide memo Exh.P.B. The empties secured from the site of occurrence and the Rifle so produced was sent to the Ballistic Expert for examination and report and positive report Exh.P.J. Was received from Ballistic Expert. Upon completion of the investigation challan Exh.P.K. Submitted before the learned trial Court i,e, Special Judge (S.T.A.) Court, Loralai. The accused Wazir Khan and his father Muhammad Noor did not plead guilty to the charge, whereupon, during trial the prosecution in support of its case examined five witnesses. The accused Muhammad Noor was not examined under section 342, Cr.P.C. As no incriminating evidence was available against him during trial and was already on bail. The convict Wazir Khan has been examined under section 342, Cr.P.C. Wherein he denial the case of the prosecution and stated that he has been implicated in a false case and that he is innocent. The convict/appellant made his statement on oath in disproof of the charge against him and took the plea of alibi. He stated that on 6-5-1995 i,e, a day prior to the date of occurrence he had gone to Killa Saifullah to see his ailing maternal uncle where he spent three days with him and on the third day of Eid went to Zhob where he allegedly surrendered to the police having come to know about the case registered against him. He further deposed that he did not own cow nor had gone with cow to the house of the deceased and that he has been involved in- a false oase. The appellant produced one witness in defence in support of his plea namely Allah Dad who deposed that on 6- 5-1995 the appellant spent night at his house with him and he was not feeling well, therefore, the appellant remained with him for three days, thereafter he was called back by his father. ' The learned Court vide his judgment dated 28-3-1997 awarded death penalty to the convict/appellant Wazir Khan and Muhammad Noor was acquitted of the charge. 3. We have heard at length the learned counsel for the appellant and the learned Additional Advocate-General in support of their respective contentions in the light of the record of the case. The learned counsel for the appellant contended and argued that the prosecution has failed to establish the guilt against the appellant beyond shadow of any reasonable doubt and raised the following grounds on which he argued the case seeking for acquittal of the convict/ appellant:--- (i) The solitary ocular witness P.W.4 being the real son of the deceased is an interested and partisan person, is not worthy of implicit reliance in absence of independent corroboration, contradictions and infirmities in his statement before the Court and as to the report lodged by him, the conduct of P.W.4 upon the happening of the alleged event are not natural and reasonable, younger age of the complainant contributed for confirmation of his deposition, the deposition of P.W.4 has given rise to more question than answered in support of prosecution case. Identification of the appellant by P.W.4 (complainant) in the moonlight is highly doubtful as in the garden which according to the learned counsel almost was covered with bush and trees and the complainant to the extent of the weapon of offence, described by him stands contradicted by the alleged recovery of empties and the rifle. (ii) The testimony of P.W.4 in the circumstances of the case requires exceptionally strong corroboration coming from unimpeachable source or supported by strong circumstantial
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evidence and in absence of such evidence (wanting in the case) the conviction is not sustainable. (iii) Motive set up has not been established except to the extent of the bald statement of P.W.4. The trivial alleged dispute not sufficient and justifiable for committing such an alleged grave offence after some days. (iv) The prosecution evidence is scarce, scanty and not qualitative. (v) Testimony of P.W.2 A.S.-I. And P.W.5 Investigating Officer S.H.O. Not worth reliance. (0 (vi) Site plan not duly proved, which also does not indicate the house of the deceased and complainant. Inspection note of the site of occurrence wanting. The site plan was inadmissible in evidence. (vii) Inquest report contains false entry of the place where the dead body was shown to be lying. (viii)Contradictions in the statement of P.W.2, 3 and 5 and due notice of the infirmities of the pr'osecution case has not been taken. (ix) The defence evidence has been wrongly and illegally disbelieved, conduct of the appellant prudent, natural and rational as per.His plea, the defence has caused in creating reasonable doubt on the prosecution case. (x) The prosecution has failed to discharge the onus successfully. (xi) It is a case which amply justifies for extending benefit of doubt to the appellant. ' The learned counsel for the convict/appellant in support of contentions relied on the reported judgments (1) PLD 1978 SC 114, (2) 1971 SCM R 432, (3) 1979 SCM R 214, (4) 1976 PCr.LJ 243, (5) PLD 1963 SC 40, (6) PLD 1973 SC 321, (7) PLD 1976 SC 241 + 629, (8) 1973 PCr.LJ 904, (9) PLD 1963 SC 17, (10) PLD 1970 SC 10. The learned Additional Advocate-General controverting the arguments of the learned counsel for the appellant submitted that there is no material infirmity, discrepancy and material contradiction in the prosecution case and the onus has been successfully discharged by the prosecution. The motive has duly been established against the appellant for commission of the alleged offence and the learned trial Court according to him has properly appraised the evidence available on record for good reasons and the defence evidence has not been relied upon by the learned trial Court due to its being afterthought and argued that the sentence awarded by the trial Court be confirmed in view of the facts and circumstances of the case and the appeal against conviction of the appellant thus liable to be dismissed. 4. 't he prosecution case is based on the following pieces of incriminating evidence. 5. P.W.1 Dr. Muhammad Akbar, Medical Officer, Zhob stated that on 7-5-1995 at about 8-30 p.m. Dead body of Sanzar Khan was brought to the Hospital for examination and report and he found the following external injuries on the dead body: (i) Entrance gun shot wound on the forehead circular in shape 1-1/2 inch in diameter. (ii) Exit gun shot wound on the occipital region. Brain matter out. Bleeding from ear and nose. Oval in shape, one inch in dia meter. ' Opinion. Death was caused due to the injuries to the vital organ i,e, brain, brain matter out, excessive hemorrhage, shock and death. ' The witness produced the death certificate Exh.P.A. And has not been cross-examined by the defence. ' The post-mortem of the deceased has not been conducted and the prosecution evidence on the point is silent as to why autopsy of the deceased was not done. It appears that the Doctor on account of the bullet injury to the brain might have not thought it fit to further ascertain the cause of death by conducting post-mortem or otherwise under, the orders of the Magistrate on the request of the complainant and other legal heir of the deceased.
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' The gun shot injury to the brain one of the most vital organ of the body detailed in the certificate Exh.P.A. Containing definite opinion of the Medical Officer about the cause of death duly proved in Court to be due to the injuries to the brain, brain matter out, excessive haemorrhage, shock and death establishes the fact that the gun shot injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. The testimony of the Medical Officer was not challenged by the defence by not cross-examining him, therefore, it shall be deemed to have been accepted by the defence as well. It is abundantly established by the Medical evidence that the deceased died due to fire arm injury which in the ordinary course of nature was sufficient to cause death. 6. P.W.4 who is the son of the deceased and solitary witness of the occurrence has deposed before the Court that he and his father while were looking the wheat crops convict Wazir Khan who was armed with KlashnikOv came to the garden along with two other persons and upon saying opened fire on his father who resultantly died, they fled from the site and he did not identify the other two persons. According to the witness the accused had after having got crossed his cow by their bull paid Rs,100 went back and after some time again the accused come to their house with the cow and asked his father for reclosing with his bull but his father refused and the accused got raged and went back due to which he has murdered his father. The witness produced his report as Exh.P.G. While being cross- examined the witness stated that his house is situated in the middle of the orchard and there is no other house in the orchard and he ran away towards the road after his father was injured. The witness admitted that people attracted to the site after the accused ran away and the people took his father to the hospital while the Medical Officer had informed the Police. Further in the cross-examination the witness stated that at night time the police came on the spot and he showed the place of occurrence to the police where the accused had left his 'Chaadar' and cap. He further admitted that it was semi dark but there was moon light at the time of incident. The witness denied the suggestion that the accused was not present at the place of incident nor was armed with Klashnikov. The witness also denied the suggestion of the defence that his father was killed on the road by unknown person and further the witness denied the defence suggestion that he has nominated the accused at the instance of Amir Muhammad Sub- Inspector Police and that the accused had no cow nor he has brought the cow for crossing to their house. ' In the given evidence of P.W.4 it has been proved that the house of the witness and of his father where they both were living was situated in the middle of the 'Baghicha' and the area of the 'Baghicha' also contained wheat crops, therefore, the presence of this P.W. And of his father in the Baghicha was quite natural and through cross-examination the version of the presence of P.W.4 at the eventful time with his father could not be impeached. It has also come on record during cross- examination that the house of the deceased is situated in the middle of the 'Baghicha' (mini garden) and there is no other house in the Baghicha', therefore, in the given circumstances the presence of any person at the relevant time would not have been in the ordinary course to be reasonable or convincing thus the P.W.4 was the only available witness of the occurrence and the contention of the learned counsel for the appellant that no independent witness has been produced by the prosecution, to our mind in the circumstances is of no substance. The testimony of the ocular solitary witness finds direct and independent corroboration from the medical evidence of P.W.1 discussed hereinabove. Mere relationship of P.W.4 (son of the deceased) will not in the ordinary course blend his testimony to be that of an interested or partisan in absence of any strong reason, enmity or motive. It is hardly in the circumstances of the case convinceable that the son of the deceased will let off the real culprit and will an innocent person instead in such a serious crime and that too for no motive. The contention of the learned counsel that P.W.4 is the interested witness and hence needs be supported by strong independent corroboration through unimpeachable source in
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removing the inherent doubt of the ocular testimony of P.W.4, no doubt as a Rule of prudence in cases where the ocular testimony is based upon the evidence of the interested or partisan person/s, the rule has to be strictly observed for the safe administration of criminal justice. As above held the testimony of P.W.4 simpliciter cannot be termed to be that of an interested person, therefore, the case law i,e,'Thoba and another v. The State PLD 1963 SC 40 has no direct application to the evidence of P.W.4, In another case-law cited by the learned counsel for the appellant, Bagh Ali and four others v. The State PLD 1973 321 SC it has been held that: "The appraisement of evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the c -e where there is total absence of physical circumstances to connect the accused person with the crime, and there is a background of enmity. In such a situation the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence necessarily create." ' The given situation noticed and visualized necessitating in laying down the Rule quoted in the abovementioned authority is wanting in the case in hand. The defense has failed to bring any material or reason on record for treating the testimony of P.W.4 to be that of an inimical or interested person requiring for the full application of the Rule laid down by Honorable Supreme Court in the above referred two authorities. Merely on the ground of relationship as liid down in the case Muhammad Iqbal alias Bala v. State (1994 SCM R 1) a witness does not become an interested witness. ' The defence has given a suggestion to P.W.4 during cross-examination that he has nominated the accused at the instance of Amir Muhammad S.I.P. (P.W.5) which has been denied by the witness to be correct. The defence has not given or even explained by the accused in his statement on oath as to the existing of any motive on the part of P.W.5 S.I.P. To get the accused involved in the case through P.W.4 neither even the P.W.5 has been on this plea cross-examined nor such a suggestion given to the witness by the defence and the suggestion given to P.W.4 by the defence side appears to have been made without any basis therefor. 7. The learned counsel for the appellant submitted that the deposition of P.W.4 with that of his report Exh.P.G. Is inconsistent, suffers from infirmities and discrepancies, therefore, is immune of implicit reliance without corroboration by reliable evidence and in support of his contention relied upon the case reported in PLD 1978 SC 114. The learned counsel to support his contention referred to comparative portions of the statement of P.W.4 to that contained in the report lodged by him. In his report the witness stated that he was having round of the Baghicha with his father while in his deposition before the Court stated that he alongwith his father were looking the wheat ,crops; in substance is neither contradictory nor an infirmity in our view as one while taking round of the Baghicha can simultaneously look after the wheat crop of the Baghicha. The stated omission in his deposition as compared to that contained in the report that when "they reached near to College Mohalla" does not affect the intrinsic value of the statement of P.W.4 nor on this point the witness was confronted by the defense and this omission by itself does not render the version of the witness as discrepant or unreliable and the stated inconsistencies/ discrepancies have been pointed out by the learned counsel for the appellant in the report and deposition of P.W.4 as follows:--- (i) F.I.R. "three persons were standing separately" deposition - accused Wazir Khan came to the Baghicha along with two other persons. (ii) F.I.R. When he alongwith his father reached near to Wazir Khan my father put 'Salaam' to him deposition - accused was armed with Klashnikov and after saying ' Assalamo-ElekumI opened fire on his father
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(iii) F.I.R. On my father one after the other four fires were made depoition - The accused Wazir Khan fired at my father. ' The comparative alleged inconsistency reproduced at No,(i) above in our estimation does not appear to be an infirmity or discrepancy in the testimony of P.W.4 wherein he deposed that "the accused Wazir Khan came to the Baghicha alongwith two other persons" is based upon his physical knowledge that "three persons were standing separately" in the Baghicha. The stated infirmity reproduced at No,(ii) above does not come in conflict inter se, the substance on the point is evident that tiring was made by the appellant after saying 'Salaam' by the deceased and in his deposition before the Court that after saying Asslamo-Elekum' the accused opened fire at his father does not indicate that 'Salaam' was given by the accused. The stated discrepancy reproduced at No,(iii) above is in fact not so, the witness in his deposition has mentioned only of the firing made by the appellant on his father, whereas; in the F.I.R. Has given the detail of such firing. In substance the aforementioned omission or the sated infirmities from whatever angle seen does not render the testimony of P.W.4 as altered in its instrinsic value and effect rather we are of the considered opinion that the testimony of the ocular witness does not suffer from any improvement, material contractions infirmity or any discrepancy which goes to the root of the prosecution case Mr. Zulfiqar alias Bhutto v. State (1995 SCM R 1668). The testimony of the solitary ocular witness is straightforward and confidence inspiring, free from any material contraction or discrepancy therefore, reliance can safely be placed on his evidence. The younger age i,e, 13 or 14 years of the complainant at the time of the incident by itself is no disqualification to his testimony which if otherwise is confidence inspiring. Conviction even in murder cases can be based on the testimony of a single witness if Court is satisfied as to such witness being reliable as has been held by18 the Honorable Supreme Court in the case Allah Bakhsh v. Shanuni and others (PLD 1980 SC 225). In the instant case the testimony of the solitary witness finds support from the medical evidence with regard to the manner of murder which has not been disputed even by the defence. To the questions put by the defence counsel to P.W.4 the witness replied that the accused had left his Chaadar and the cap and that he had shown the place of incident to the police who recovered the articles from the said site and these facts have been brought on record by the defence through the mouth of the solitary eye-witness gets further support of the recovery memo. (Exh.P.F.) of the Chaadar and cap produced by P.W.3 Nizamuddin head constable. The recovery memo indicates that these articles were pointed out to the police by the complainant (P.W.4). ' The contention of the appellant's counsel that the identification of the convict in the moonlight by the complainant was difficult and highly doubtful. The complainant in report Exh.P.G. Has not only given the name of the appellant rather has mentioned his caste, parentage and occupation and about the other two he stated that he -could not identify them, thus it is evident that the appellant was known to the witness previously and as per report and deposition of the witness the convict had come to their house for crossing his cow with he bull twice, therefore, there is no reason to believe that the convict was not known to the complainant or mistakenly identified. The complainant very fairly stated that he did not identify the other two persons accompanying the convict further lends support to the> prosecution version about exact identification of the appellant who as such has been categorically and explicitly nominated by the complainant. In absence of any strong reason or enmity there is no substance in the argument that despite lacking proper identification of the appellant by the complainant he has been nominated and implicated in the case. To .a question by the defence the witness stated that it was moonlight at the time of incident and semi dark, therefore. By visualising the scene of moonlight an argument has been advanced on the plea that the identification of the convict was difficult and doubtful, which in fact has no basis. It is not the case of the prosecution that the witness had identified the appellant in the
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moonlight rather he nominated the appellant who was already known to him. The distance betWeen the witness, the Culprit and the object in such a situation could be very relevant for the purposes of identification but this aspect being so built up during arguments, has not been attended to during trial by the defence. The case law 1971 PCr.LJ 904 cited by the learned counsel is distinguishable on facts, in the cited case the question of identification of the accused arose on account of the murder having committed in the moonlit night under shade of tree. In the instant case the appellant was known to the witness already and there is no evidence that the culprit was under, any shade or at such a distance from where he could not have been identified. Mst. Shamirn Akhtar's case reported in (PLD 1992 SC 211) could be referred conveniently on the point where also the identification of the accused in the torch light by the complainant arose and it had been held by the Honorable Supreme Court that the question of wrong identification in torch light did not arise as the accused was already known to the complainant. 8. The learned counsel for the appellant candidly argued that the motive set up in the report by P.W.4 has not been established except to the extent of the bald statement of the complainant. This argument put forth does not carry the weight as the learned counsel conceded to the fact that the alleged motive finds support…
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