P L D 1970 Karachi 677 (PLP)

Considering in the light of the above ruling the objection taken by the learned counsel for the appellants loses all its force, as in this view of the matter Abdul Ghafoor's statement (Exh. P. A.) recorded in the hospital could alone be treated as the first information report." Besides, as held in Ghulam Sarwar v. The State (P L D 1959 Lah. 1002), it is well settled that :‑ Were a report about commission of an offence is given to police at two different places by two different persons, and one is earlier in point of time than the other, the latter report is not a statement made to a police officer in the course of investigation but is an independent F. I. R. and, therefore, can be used in evidence by the prosecution. Cases of Emperor v. Lalji Rai (A I R 1936 Pat. 11), Maganlal Radhakishan v. Emperor (A I R 1946 Nag. 173) and Emperor v. Aftab Muhammad Khan (A I R 1940 All. 291) were relied upon in support of this view and we may also mention in this connection the case of Tika Ram and others v. The State (A I R 1957 All. 755) in which it was observed as follows :‑ "The words in the course of an investigation' in section 162, Cr. P. C. import that the statement must be made as a step in pending investigation, to be used in that investigation and do not refer merely to the period of time which elapses between the beginning and the end of the investigation. Thus where there is a second report made to the police about the commission of an offence which is found to have been made quite independently of, and in no relation to, any pending investigation, and has no reference at all to the investigation which has in fact already begun, it is a document admissible for the purpose of corroborating the evidence of its maker, under section 157 of the Evidence Act, or to contradict him under sections 155 and 145, though it is not a substantive evidence of facts stated therein." .

21. Mr. Brohi, the learned counsel for the appellants has contended that the First Information Report appeared to have been filed late and the time of 1 1‑00 a. m. shown therein is a forgery. We find absolutely no grounds for holding so. In this connection a suggestion was made in cross‑examination to P. W. Jam that he had filed the report between 12 and 4 p.m. Similarly, S.H.O. Muhammad Ibrahim was asked in cross‑examination on this point that he had "recorded the F. I. R. at night after completing the investigation". Both of them, however, denied these contradictory suggestions.

22. Mr. Brohi has laid great stress on the fact that having regard to certain over writings in the Roznamcha entries, the evidence as to the timings mentioned in the F. I. R. was also open to suspicion. We have examined these entries with the help of a magnifying glass and find that the original and the subsequent entries are as under :‑ Original Subsequent Entry No. Relating to Entry hour. overwriting hours.

7. Report under section 109, 0930 0930 Cr. P. C. in another No overwriting. case.

8. Telephone message about this 0950 1015 occurrence received from Railway Police.

9. Police Constable Ghulam Ali's 0952 1020 leaving the police station

10. Return of Foot Constable 0955 1025 Muhammad Ramzan in connection with another case.

11. Post‑mortem report in another 1000 1026 case .

12. Head Constable' Nazir Ali 1003 1027 being given a rifle in another case

13. Muhammad Ramzan being 1005 1028 sent to guard dead bodies in this case.

14. F. I. R. in another case 1030 1030 (no overwriting)

15. F. I. R. in this case 1100 1100 (no overwriting).

16. Change of duty and resumption 1200 1200 of duty by Foot Constable (no overwriting). Karamat Hussain Shah.

17. Bringing all the six accused in 1600 1600 this case to the police station (no overwriting) and mentions details about their Weapons, arrest etc.

4. The correctness of Exh. 28, which is an entry from railway police station diary, is not disputed before us by the learned counsel for the appellants nor was it disputed at any stage before the trial Court. As far as the entries in the Roznamcha maintained by the Dadu Police Station we would also like to point out that the time of the first report is shown as 11‑00 hours in entry No. 15 which admittedly has not been overwritten. It is, therefore, obvious that at both the places namely the railway Police Station as well as the Dadu Town Police Station the time of the occurrence and time of report have been correctly shown as 10‑30 a. m. and 11‑00 a.m. respectively. In view of this position the overwritings in entries Nos. 8, 9, 10, 11, 12 and 13 do not appear to be of any special significance. S. H. O. Muhammad Ibrahim's explanation about these over-writings is that his watch had stopped as he forgot to wind it in time. There was also no clock available at the police station and he made the first entry by referring to his watch implying thereby that he did so without realizing that the watch had stopped. We find nothing wrong with this explanation. In this view, it is possible that when S. H. O. Muhammad Ibrahim made entry No. 8, the actual time was about 10‑15 a. m. but since his watch may have stopped about 23 minutes earlier he showed the time as 09‑50 a. m. The subsequent entries namely Nos. 9, 10, 11, 12 and 13, therefore, are consistent with his explanation because once it is conceded that entry No. 8 was incorrectly recorded then the rest of the entries were bound to be incorrect by the same margin of time. By examining these entries we have not been able to understand nor the learned counsel for the appellants pointed out to us as to what advantage the prosecution could take by tampering with the entries at S. Nos. 8, 9, 10, 11, 12 and

13. It is not denied that at least the original entry at S. No. 8 was recorded at 09‑50 hrs. and therefore by its subsequent change to 10‑15 a. m., which is just a margin of 25 minutes we fail to see what could be the possible advantage for the prosecution. Mr. Brohi's next contention was that in the note added to the First Information Report under the heading of "police proceedings" it is clearly mentioned that the entry No. 8 was made at 10‑15 a. m. From this the learned counsel drew the inference that this note must have been made after the return of the S. H. O. to the police station at 4‑00 p. m. as it was he who made the corrections in the Roznamcha entries and accordingly the writer of this note would not have known at 11‑00 a. m. that the entry No. 8 should really be 10‑15 a. m. and not 09‑50 which was actually the original entry before it was corrected. In this connection we may again refer to the relevant entries in the Roznamcha and we would point out that it is clearly mentioned therein that the report about this offence was lodged at 11.00 a.m. as the entry at S. No. 15 would show. Admittedly this entry has not been everwritten or tampered with. The next entry, namely, the one at S. No. 16 is made at 12‑03 hours and relates to a different matter. It is accordingly clear that the First Information Report was really lodged at 11‑00 hours as otherwise this entry could not have been made before the entry at S. No. 16 regarding the change of duty of Foot Constable Karamat Hussain Shah which was made at 12‑00 hours and does not show any overwriting. S. H. O. Mohd. Ibrahim stated in cross‑examination that entries at S. Nos. 11, 12 and 13 were in the hand of Head Constable Mohammad Yousuf. As regards overwritings he stated as follows :‑ "I think I have corrected the timings due to same reason." It appears from this that S. H. O. Mohammad Ibrahim is not certain on this point and one cannot blame him for this, as he was being examined more than 2J years after the incident. We, therefore, feel that the corrections in the Roznamcha entries must have been made by one of his subordinates before Jam went to the police station at 11‑00 a. m. as it must have been by then realized that incorrect timings had been shown on account of Mohammad Ibrahim's watch being slow by 25 minutes or so.

24. In any event the overwritings in the Roznameha could not be sufficient justification for discarding the direct evidence of P. W. Jam which we have found to be extremely convincing.

25. The learned Sessions Judge, Dadu who tried this case and observed the demeanour of the witnesses came to the conclusion that P. W. Jam's "presence at the vardat and his evidence could not be doubted", and that his evidence was "true, convincing and sufficient for the purpose of holding that Waloo and Allahdino accused fired at Nawaz Ali and Buxali and that accuseds 3 to 6 were with Waloo and Allahdino . . . " The learned Judge also inspected the scene of occurrence personally before reaching this conclusion, which appears to have been based on good reasoning. After carefully scrutinizing the testimony of P. W. Jam and after considering all the contentions raised by the learned counsel for the appellants on this point, we have not the slightest hesitation in agreeing with the learned trial Judge that P. W. Jam had witnessed the occurrence and identified the six appellants, who were previously known to him, as the assailants of his brothers.

26. Apart from the evidence of P. W. Jam we have also on record the testimony of P. Ws. Mahmood Shah Head Constable Railway Police, Ghulam Abbas and Nasir, both Railway Constables, who alongwith Muhammad Ashraf and Hassan Askri chased the appellants for a distance of about 3 miles from the scene of occurrence right up to the Bhand Village where the appellants subsequently took shelter in the house of one Yousuf Bhand. They had an encounter with the appellants about one furlong away from the scene of occurrence. There empty cartridges were also secured from this place of encounter as deposed to by Mashir Allah Warayo P. W. 10 and S. H. O. Mohammad Ibrahim. Their evidence is corroborated on this point by the Mashirnama Exh, 11.

27. P. Ws. Mahmood Shah, Ghulam Abbas and Nasir are all independent witnesses having neither any connection with P. W. Jam nor any enmity or grievance against any of the six appellants; and their evidence cannot be discarded merely because they happened to be in Police Service.

28. Mr. Brohi has pointed out certain contradictions in the evidence of these witnesses regarding the place where their statements were recorded and on some other unimportant aspects of the prosecution case. Such contradictions are bound to be there in every case specially when numerous witnesses are examined nearly 2j‑ years after the alleged incident. Moreover, as observed by, their Lordships of the Federal Court in the case of Ghulam Safdar and another v. The Crown (P L D 1956 F C 126) the fate of a criminal case does not depend upon the existence of vague discrepancies in the1 statement of witnesses.

29. It is no doubt correct that these witnesses have made certain admissions in their cross‑examination with a view to whittle down the force of their evidence. P. W. Ghulam Abbas stated in his, cross‑examination that "the faces of the culprits were muffled at the time when they were running". Similarly, P. W. Nasir stated that he was not certain about the identity of any appellant except Waloo. The learned Sessions Judge who saw these witnesses received the impression that they had made certain admissions to favour the appellants by creating some confusion in their evidence which was otherwise convincing and not open to any doubt whatsoever. We fully concur in this view of the learned trial Judge. Apart from P. W. Ghulam Abbas no other witness was even asked whether the faces of the assailants were muffled. Ghulam Abbas himself had not introduced this fact in any of his earlier statements and was all along positive that he had seen all the assailants whom he identified in Court.

30. As regards P. W. Nasir, the learned Sessions Judge brought his deposition before the Committing Magistrate on record as Exh.

25. Although it has not b.‑en specifically mentioned, we have no doubt that the learned Judge did so under the provisions of section 288, Cr. P. C. As the witness was duly confronted with the relevant passage and all the provisions of the Evidence Act in this regard were complied with, we do not see any thing wrong with the procedure adopted by the learned Sessions Judge in bringing Exh. 25 on record and treating it as evidence in the case. In his deposition P. W. Nasir (also described at some places as Nasiruddin) had stated that "the accused present in Court are the same". He had further pointed out appellants Waloo alias Wali Muhammad and Allahdino as the assailants who were armed with guns and the remaining four appellants as those who were armed with hatchets. The witness unequivocally stated as follows :‑‑ These are the six persons who were running away, being chased by us and who were subsequently arrested by D. S. P. Dadu. In the Court of the committing Magistrate this witness was cross‑examined at length but nothing was brought out in the cross‑examination to discredit this testimony in the slightest degree. It was, therefore, obvious that he was deliberately introducing certain matters at the trial with a view to favour the appellants by creating some sort of doubt in the prosecution case.

31. Mr. A. K. Brohi, the learned counsel for the appellants contended that if the witnesses had deliberately introduced these facts so as to favour the appellants, on this ground alone, their evidence should be completely discarded, as they were basically dishonest. We regret we cannot subscribe to such an extreme proposition. In this connection we cannot do better than to reproduce a passage from the judgment of Muhammad Munir, C. J. in the well‑known case of Adalat v. Crown (P L D 1956 F C 171) wherein it was observed as follows :‑ "Generalizations relating to the appreciation of evidence are not at all rules of law, and if they were ever to be treated as such, the result, in my humble opinion, would be chaos and would deprive Judges of the lower Courts who have to decide on conflicting evidence, of that freedom of reasoning and action which is the first requisite of a judicial investigation. If we were to say that, however, definite the evidence of a witness in examination‑in‑chief may be, it must be read subject to all the qualifications, however dishonest, which a witness introduces in his cross‑examination, we would be paving the way for miscarriage of justice on a large scale, and encouraging the accused persons in this country and their relatives to purchase from the prosecution witnesses as a admission in their cross- examination that when in their examination‑in‑chief or reports to the police they charged certain persons with the commission of murder their only justification for naming the accused was the sizes of the miscreants. In my opinion, the judgment of the High Court was right and no reason of the kind that prompts this Court to interfere in criminal cases exists. I would, therefore, dismiss the appeal because it seems to me that interference with the judgment of the High Court in a case like this can only be justified on a general principle and that general principle which, I must confess appellants had been captured after a hot chase and that two guns which were freshly fired and were smelling of gun powder were recovered from appellants Allahdino and Walloo.

35. The evidence of the Ballistic Expert P. W. Ghulam Abbas conclusively proves that both these guns were fired at the scene of occurrence as well as at the second place of encounter. The learned counsel for the appellants contended before us that the opinion of P. W. Ghulam Abbas should be discarded as he was not sufficiently experienced and further that the crime weapons and empties had been sent to him after a long time so much so that these were received by him only on 11‑8‑1966. Mr. Brohi also emphasised that inasmuch as the expert had not conducted any negative test by using guns other than the two sent to him, his opinion was not entitled to much weight. P. W. Ghulam Abbas has stated that he has examined about 16C0 fire‑arm cases and appeared as a witness in 40 such cases. Naturally, he could not say as to how many times he had been believed or disbelieved as he cannot be expected to read judgments in all these cases. Besides, from the mere fact that he had not gone abroad for training it would not mean that he is not competent or that his opinion is useless. As regards the delay in sending the parcels to the Ballistic Expert we feel that it is immaterial as the weapons as well as the empties were sealed at the spot and the parcels were received by the Ballistic Expert with the seals intact. Such weapons are usually sent to the Ballistic Expert through the office of the Superintendent of Police and this process takes some time. It is also our experience that as a rule no negative test is held in such cases but in spite of its absence the opinion of the Ballistic Experts has been relied upon by this Court as well as by the Supreme Court in a large number of cases. We, therefore, consider the opinion of the Ballistic Expert to be a weighty circumstance against appellants Allahdino and Waloo.

36. All the six appellants denied that they were captured in chase or that any weapons were secured from them. In the Court of Enquiry appellant Waloo stated that he and his relation appellant Rano were both arrested at the hotel of one Shafi Punjabi in Khairpur Nathan Shah town, which is any map would show, is about 30 miles away from Dadu. The appellant asserted that he was arrested in presence of Shafi Punjabi and Akk Lund. Appellant Ratio also adopted this defence. One would have normally expected the two appellants to examine S Punjabi and/or Akk Lund to prove their alibi. Instead, both of them abandoned this defence and contented themselves by a bare denial of the prosecution case. Similarly, appellant Beero stated before the Committing Magistrate that he was implicated at the instance of one Ghulam Ali Police Constable against whom he had made an application alleging therein that he had taken an illegal gratifica tion from this appellant. This defence was also abandoned at the trial with the same case with which it was advanced in the Committing Court. None of the other appellants made any efforts to explain any circumstance appearing in evidence against him. They have denied the allegations and stated that they had been falsely implicated on account of enmity. Apart from P. W. Jam none of the other witnesses who have given evidence regarding the capture of the appellants have any reason to falsely involve any one of them. There is also nothing on record, not even an allegation to the effect that any of these witnesses was under the influence of P. W. Jam or any of his relations. In fact, the unimpeachable testimony of these witnesses has gone totally unchallenged.

37. The appellants have further stated that they were arrested separately from their respective villages. It is hard to believe; as two of them, namely, Waloo and Rano are residents of Shahdan Village which is situated in Taluka Johi, while Beero resides in Village Nazam in Taluka Khairpur Nathan Shah. The remaining three appellants who are Bhands by caste are residents of Dadu Taluka. It can, therefore, be seen that it would have been more or less impossible for the Police to collect these six appellants from such far flung places and to bring them to Dadu Police Station within 4‑5 hours after the occurrence. Moreover, if Mr. Brohi wants us to believe that P. W. Jam himself came to the scene a long time after the occurrence, who else could have given their names to the Police so as to enable the latter to arrest all the six appellants within a few hours of the occurrence from their respective villages which as we have already stated are located in far flung areas of different talukas. The facts and circumstances of this case are fully consistent with the prosecution case that the appellants were arrested in a hot chase and we cannot discard or doubt this weighty circumstance which goes a long way in establishing their guilt beyond any reasonable doubt.

38. In a test held subsequently in presence of a Magistrate P. W. Abdul Latif, the slippers left by the assailant at the vardat were found to have fitted appellants Waloo and Buxal. The evidence of the Magistrate is corroborated by the Mashirnama Exh. 22, and this circumstance also connects the two appellants with the crime.

39. Lastly, all the appellants had a strong motive for the commission of this crime. P. W. Jam has stated in his evidence that about 1i years before this occurrence Hussain Bhand nephew of appellant Waloo and brother of appellant Rano and one Sharif Bhand who was cousin of Allabdino, brother of Imamuddin and uncle of Buxal were murdered. Deceased Nawaz Ali alias Ali Nawaz, P. W. Jam and their two nephews Khan and Kirir were prosecuted for these murders but they were acquitted about 8 months before the present incident. The two parties of Bhands and Brihamanis appeared to have made a common cause to avenge the murders of their relations. Appellant Beero is said to be a friend of the other five appellants. This part of the evidence of P. W. Jam has not been disputed before us; nor is there any cross‑examination on the point of motive which is also mentioned in the First Information Report. The manner in which these murders were committed in broad daylight in the heart of Dadu town, indicates that whosoever committed this crime must be having a strong motive such as has been alleged and fully proved by the prosecution in this case.

40. Mr. A. K. Brohi has argued that besides the appellants several others had a motive to commit these murders. May be so; but that would be no ground for us to discard the clear, cogent, unimpeachable and convincing direct as well as circum stantial evidence adduced by the prosecution in this case.

41. In the course of his arguments Mr. Brohi repeatedly emphasised that if this had been a premeditated affair as alleged by the prosecution, the appellants would not have chosen a crowded place like the Railway station for committing these murders. The learned counsel contended that the time as well as the place of occurrence negatived the theory of a preplanned murder. It is impossible to say as to what exactly prompted an individual or a body of persons to commit a crime in the manner they did. However, the fact remains that the deceased persons were also conscious of the fact that they had several enemies and they were carrying guns for their protection. It was only in the town of Dadu that they must have felt secure and, therefore, could be taken unawares in this manner. Be that as it may, the place and time of occurrence are not disputed and we may also add that it is inconceivable that the police should decide to falsely involve innocent people in a case like this in which the investi gations have been conducted from the very beginning under the supervision of superior officers including the S. P. and the assailants were caught in hot chase.

42. Before we conclude we would like to deal with yet another contention of the learned counsel for the appellants. Mr. Brohi repeatedly argued that although this incident was alleged to have taken place at a crowded locality like Dadu Railway Station at a time when an express train was at the platform, yet the prosecution has not examined any independent eye‑witness the occurrence. It is no doubt true that several persons must have witnessed the occurrence and it has also come in evidence at some people chased the culprits for some distance. However, in a case of this nature it is well known that no disinterested person, much less a town deweller or a city businessman, would like to come forward as a witness; as the consequences thereof may not be very pleasant. Whoever committed this audacious crime must be men of daring and no person would like to incur their wrath by coming forward to give evidence against them. Moreover, although a few persons must have initially chased the assailants there was no need for them to run after the culprits for a distance of three miles. This is particularly so as the appellants were firing to scare their pursuers. Besides the policemen were already following them. It is accord ingly nothing extraordinary if the entire evidence on the point of chase and capture consists of the testimony of police officers.

43. After having heard the learned counsel for the appellants at length and having considered the evidence on record, we have not the slightest doubt that the guilt of all the six appellants has been fully established by very cogent and convincing evidence. We, accordingly, dismiss their appeals.

44. There are no extenuating circumstances in this case. In fact it has not been even contended before us that the death sentences are not called for. Indeed in a case of brutal and audacious murders like this, only the normal sentence of death 1 can meet the ends of justice. We would, therefore, while dismissing this appeal, also accept the reference under section 374, Cr. P. C. and confirm the sentence of death awarded to appellants Waloo alias Wali Mohammad and Allahdino. S. Q. Appeals dismissed.