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1993 P Cr
14–18 minutes

1993 P Cr. L J 704

[Peshawar]

Before Muhammad Bashir Khan Jehangiri and Jalal-ud-Din

Akbar Jee, JJ

MUHAMMAD ASLAM SHAH---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.3 of 1992, decided on 20th December,

1992.

(a) Qanun-e-Shahadat (1o or 1984)---

----Art. 19---Rule of "Res gestae" defined and explained.---[Res

gestae]. Article 19 of Qanun-e-Shahadat, 1984 corresponding to
section 6 of the Evidence Act, 1872, enacts the rule which in
English text-books is treated under the head Res gestae. Rest
gestae has been broadly defined as matter incidental to the main
fact and explanatory of it, including acts and words which are so
closely connected therewith as to constitute a part of the
transaction and without a knowledge of which the main fact might
not be properly understood. They are the events themselves

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speaking through the instinctive words and acts declarations which

grow out of the main fact are contemporaneous with it and serve to
illustrate its character. It has also been defined as including
everything that may be fairly considered an incident of the event
under consideration.

(b) Penal Code (XLV of 1860)-----

----S. 302---Appreciation of evidence---Ocular evidence was not

discrepant and was corroborated by medical evidence and
production of crime weapon before the Investigating Officer with
which the crime empty recovered from the spot was found to have
been matched---Conviction and sentence awarded to accused
were maintained in circumstances.

Nemo for Appellant.

Muhammad Aslam Khan Asstt. A.-G. for the State.

Date of hearing: 20th December, 1992. .

JUDGMENT

MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This Jail Appeal is

directed against the judgment of learned Additional Sessions
Judge Il, Haripur, dated 16-10-1991 whereby he convicted
Muhammad Aslam Shah, aged about 80 years, under section 302,
P.P.C. for causing the death of Suleman Shah and sentenced him
to suffer rigorous imprisonment for life and also to pay a fine of
Rs.10,000 or in default thereof to suffer further rigorous
imprisonment for 4 years. The fine, if realized, was directed to be
paid to the legal heirs of the deceased as provided under section
544-A, Cr.P.C. He was, however, extended the benefit of section
382-B, Cr.P.C.

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2. Feeling aggrieved Muhammad Aslam Shah, convict-appelllant,

hai1 preferred this Jail Appeal.

3. Mr. Muhammad Aslam Khan, learned AA.-G. argued on

20-12-1991 and on conclusion of the arguments by a short order
we had dismissed the appeal. We are giving reasons for the order
passed by us on 20-12-1992.

4. According to the first information report lodged on 27-9-1986 at

9-00 a.m. by Phul Hussain Shah (P.W.7), about 16/17 years earlier
Mst. Muhammad Jan mother of Suleman Shah deceased had
contracted her second marriage with Sultan Shah son of Mir
Haider Shah, and after the death of Sultan Shah, his son
Muhammad Aslam Shah accused turned out her stepmother Mst.
Muhammad Jan from his house. She started residing with
Suleman Shah deceased, her deceased son from her previous
husband, for the last about 1 year prior to the occurrence. Mst.
Muhammad Jan had inherited Kanal 11-1/2 Marlas of land from
Sultan Shah. She sold that land to one Rahim Shah for a sum of
Rs.9,500. Muhammad Aslam Shah convict was, therefore,
annoyed. As to the actual occurrence, it is alleged that on the day
of occurrence at about 8 a.m. Suleman Shah deceased was going
to the house of his nephew Qasim Shah (P.W.8) for asking him to
help him in harvesting the Maiz crop. Phul Hussain Shah (P.W.7)
was following the deceased at some distance. When deceased
Suleman Shah reached near the house of Muhammad Aslam
Shah accused-convict, the latter who was armed with .12 bore
shotgun fired at him, which hit the deceased, Suleman Shah on
the right side on the base of his neck. The deceased fell dead on
the spot instantaneously. On the report of fireshot, Qasim Shah
(P.W.8) and Ashiq Shah (not examined) were attracted to the spot

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alongwith a host of others. The accused, thereafter, decamped

towards the back of his house with p his shotgun.

5. Nisar Muhammad S.H.O. (P.W.9), while on surveillance duty

near Jharri Kass Bridge, received the information of the murder of
Suleman Shah and he rushed to the spot where he found Phul
Hussain Shah P.W. present with the dead body. Nisar Muhammad
S.H.O. took down the report Exh.PA./1 of Phul Hussain Shah, on
the basis of which F.I.R. Exh.PA. was drawn the same morning at
10-15 hours. The S.H.O. then prepared the injury sheet
Exh.P.W.9/1 and inquest report Exh.P.W.9/2 and despatched the
dead body to Civil Hospital, Haripur, for post-mortem examination.
He then prepared the site plan Exh.P.B. at the instance of the
P.Ws. He also secured blood-stained earth and blood-stained
straws. He took into possession an empty shell P.2 of .12 bore
giving fresh smell of fresh discharge and sealed it into a parcel
vide memo. Exh.P.W.l/2. After the post-mortem examination,
Muhammad Zaman F.C. (P.W.2) brought from the hospital shirt P.3
blood stained having cut and charring marks, a phial P.4
containing wads and another phial P.5 containing the pellets duty
sealed by the doctor were taken into possession vide recovery
memo. Exh.P.W.l/3. Syed Bazurgh Shah (P.W.3) had produced to
the S.H.O. shotgun P.6, 4 live cartridges P.7, saying that the
convict was his relative and had approached him in his house and
produced the gun and the cartridges aforesaid saying that he was
going to lodge the report; that after lodging the report he would
collect the same on his return. He also demanded Rs.50 from him
as loan. The shotgun and the cartridges were sealed into a parcel
vide memo. Exh.P.W.l/4. Later on, Jumma Shah P.W. not
examined, produced to the S.H.O. the licence copy P.1 in respect

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of the gun produced by Bazurgh Shah P.W. to the 1.0. who sealed'
it into a parcel vide memo. Exh.P.W.5/1. The gun and the empty
P.2 were despatched to the Forensic Science Laboratory. The
report Exh.P.W.9/4 of the Arms Expert showed that the crime-
empty marked "C" had been fired from .12 bore S.B. shotgun in
question and further that the pieces of wads marked W.1 and W.2
and the 6 crime pellets marked P.1 to P.6 can be used in .12 bore
cartridges and can be fired through any smooth bore weapon.

6. After recording the statements of P.Ws. he arrested the accused

and challaned him into the Court to stand his trial. In support of its
case, the prosecution placed reliance on the ocular evidence of
Phul Hussain Shah (p.W.7).and Qasim Shah (P.W.8), the medical
evidence furnished by Dr. Noor Wahab Shah Medical Officer
Incharge Civil Hospital, Haripur (P.W.10), the shotgun P.6 and 4
cartridges P.7 produced by Bazurgh Shah (P.W.3) and the report
Exh.P.W.9/4 of the Arms Expert the Forensic Science Laboratory

7. On 27-9-1986 at 11-50 a.m. Dr. Noor Wahab Sh (P.W.10)

conducted post-mortem examination on the dead body of Suleman
Shah, aged about. 50/51 years and found, on external
examination, a fire-arm entrance wound of 2-1/2" x 2-1/2" in size
on the base of right side neck just above the medial part of
clavical. Charring was also detected by him.

In the opinion of Dr. Noor Wahab Shah (P.W.10) the death had
occurred due to shock and haemorrhage on account of injury to
the subclavian artery, aorta and lung, caused by the fire-arm. The
death according to the doctor was instantaneous but the time
between death and post-mortem was about 4 hours. The tomach
was found healthy and contained semi-digested food.

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8. The defence of the accused when examined under section 342,

Cr.P.C. was of bare denial.

Phul Hussain Shah (P.W.7) after giving out his relationship with the
deceased and that of Qasim Shah with himself and the deceased
has stated that on the day of occurrence at about 8 a.m. while the
deceased was on his way to the house of his nephew 0asim Shah
(P.W.8) for asking him to help in the harvesting the Maize crop, he.
(P.W.7) was following the deceased at some distance when
Muhammad Aslam Shah convict-appellant fired a shot with his .12
bore shotgun near his house felling him to the ground. On the
report of fire shot Qasim Shah (P.W.8) whose house is in the same
vicinity rushed to the spot followed by others and had witnessed
the accused running away from the spot with a shotgun in his
hands. His evidence further is that after about half an hour the
police reached the spot on learning about the occurrence where
Phul Hussain Shah lodged the report Exh.P.A./1. Qasim Shah
(P.W.8), on his part conceded, that Suleman Shah was his uncle
while accused was also related to him, as uncle. According to him,
as his house was contiguous to the house of the convict, on the
day of occurrence at about 8 a.m. he came out of his house on
hearing the report of fireshot and saw Suleman Shah deceased
lying dead on the ground and also noticed Muhammad Aslam
Shah accused with a shotgun going towards his house. Phul
Hussain Shah was standing by the dead body and informed him
that the convict-appellant had fired at the deceased. According to
Qasim Shah P.W., the convict-appellant was his real uncle while
Suleman Shah deceased was distantly related to him.

9. Both the P.Ws. were cross-examined at length.

10. 1'he learned trial Judge believed the version of the

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prosecution, as also the motive, the medical evidence furnished by

Dr. Noor Wahab Shah (P.W.10), the production of the crime
weapon by Syed Bazurgh Shah (P.W.3) and the report
Exh.P.W.9/4 of the Arms Expert in the Forensic Science
Laboratory and convicted and sentenced the appellant as stated
above.

11. We have gone through the record of the case carefully with the
assistance of the learned A.A.-G. and have reappraised the entire
evidence that has been produced by the prosecution and have
read the statement of the convict-appellant under section 342,
Cr.P.C. We have not been able to satisfy ourselves that there was
no creditworthy evidence against the appellant for recording
conviction against him for the murder of Suleman Shah deceased
in this case. We find that the occurrence had taken place in front of
the house of the convict-appellant at about 8 a.m. when there was
sufficient light to identify the assailant. The appellant being a co-
villager of the two P.Ws. was also related to them and was thus
previously known to Phul Hussain Shah and Qasim Shah P.Ws.
There is not even a semblance of evidence that Phul Hussain
Shah and Qasim Shah were chance witnesses. Phul Hussain
Shah (P.W.7) has given a plausible cause of his presence on the
spot at the time of occurrence. No circumstance has been pointed
out to suggest that the presence of Phul Hussain Shah (P.W.7) at
the time and place of occurrence was a sheer concoction. The
time of occurrence was such that the two P.Ws. could be present
at the spot. The presence of Phul Hussain Shah (P.W.7) at the
time and place of occurrence is therefore, proved beyond any
reasonable doubt. The evidence of Qasim Shah (P.W.8) on the
other hand was, in its nature of "Res-Gestae". According to him,

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he had rushed to the spot on hearing the report of fireshot and

found the deceased lying dead while Phul Hussain Shah was
standing near the dead body. Further that when he reached at the
spot he was informed by Phul Hussain Shah that the convict-
appellant has fired the deceased to death. The evidence of Qasim
Shah further is that he had seen the convict-appellant going away
from the spot with the gun in his hands. Article 19 of Qanun-
e-Shahadat, 1984 corresponding to section 6 of the Evidence Act,
1872, enacts the rule which in English Text-Books is treated under
the head Res Gestae. Rest gestae has been broadly defined as
matter incidental to the main fact and explanatory of it, including
acts and words which are so closely connected therewith as to
constitute a part of the transaction and without a knowledge of
which the main fact might not be properly understood. They are
the events themselves speaking through the instinctive words and
acts of the participants; the circumstances, facts and declarations
which grow out of the main fact are contemporaneous with it and
serve to illustrate its character. It has also been defined as
including everything that may be fairly considered an incident of
the event under consideration. The statement of Phul Hussain
Shah (P.W.7) made to Qasim Shah (P.W.8) and the factum of his
seeing the convict appellant going away from the spot immediately
after the occurrence holding a gun in his hand were made under
immediate influence of a transaction in order to characterise it and
explain circumstances connected therewith which are admissible
under Article 19 of the Qanun-e-Shahadat, 1984, particularly when
there was no further time for thinking and fabrication. The
statement made by Phul Hussain Shah to Qasim Shah P.W. was
substantially contemporaneous with the act. The interval between
the act of firing the deceased to death and the declaration was not

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such as to allow of fabrication. In consequence, the evidence of

Qasim. Shah would be admissible under Article 19 of Qanun-e-
Shahadat, 1984 and no possible exception could be taken thereto.

12. The medical evidence of Dr. Noor Wahab Shah fully

corroborates the prosecution case as unfolded by Phul Hussain
Shah both in his report Exh.P.WA/1 as well as in the witness-box
when he was examined as P.W.7. The evidence of the two P.Ws.,
namely, Phul Hussain Shah and Oasim Shah is not shown to be
discrepant on any aspect of the case still requisite corroboration is
forthcoming from the production of the crime weapon by Bazurgh
Shah (P.W.3) to the I.O. who is not shown to have got any animus
for false charge and the crime empty recovered from the spot was
found to have matched with it vide report of the Arms Expert in the
Forensic Science Laboratory.

13. We are satisfied that the conviction of the appellant under

section 302, P.P.C. is well-founded. The sentence of life
imprisonment was also proper because the learned trial Judge has
taken the advance age of the convict appellant as an extenuating
circumstance and we would, therefore, also confirm the sentence
of imprisonment for life. The sentence of fine and the direction qua
the payment thereof to the heirs of the deceased is also confirmed.

14. This appeal from jail has, therefore, no substance which is

accordingly dismissed. The convict-appellant shall be informed
through the Superintendent Central Jail, Haripur, about the fate of
the appeal filed by the convict-appellant. A copy of the judgment
shall also be furnished to the appellant through the Superintendent
Central Jail, Haripur.

N.H.Q./1439/P Appeal dismissed.

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