1986 P Cr (PLP)

The case of the prosecution comprises the ocular testimony of four witnesses namely, complainant P.W.2 Manzoor Hussain, P.W. 1 Fazal Karim, P.W. Muhammad Waris and P.W. Muhammad Ajmal, the recovery of crime weapon blood‑stained and blood‑stained clothes of the appellant, medical evidence of P.W.6 Dr. M.S.A. Farooqi, who had performed the post‑mortem of the deceased person, P.W.9 Dr. Muhammad Anwar who examined injuries of the deceased while he was alive and motive as disclosed in the deposition of Muhammad Ajmal is that the appellant asked him to accompany him for immoral purpose (sodomy purpose). It is pertinent to note that the motive was abandoned by the prosecution at the trial. P.W.5 is Chaudhry Muhammad Aslam who is Mashir for recovery of blood‑stained Chhuri Exh.8/A and blood‑stained clothes of the appellant Exh.8/B. P.W.8 is Investigation Officer Muhammad Younus A.S. I. who had carried out the investigation. Apart from these witnesses, P.W.3 Mushtaq Ahmed appeared as a witness on behalf of the prosecution who has stated that he was in house when he heard noise from outside. He came out of his house. He saw deceased lying injured and was unconscious. He had two injuries on his person. He took the injured in a rickshaw to the Civil Hospital and got him admitted there. P.W.4 Abdul Majeed is Mashir of memo. of dead body Exh.6/A and inquest report Exh.6/B. The complainant P.W.2 claims to be an eye‑witness of the incident in question on the basis of the contents of the F.I.R. aid also from his evidence. He stated in his evidence that he saw deceased standing near Coal Godown near latrine and appellant came from the front lane. When appellant approached near, he immediately took out Chhuri and attacked Ghaffar giving Chhuri blow on the chest. Deceased Ghaffar fell down and appellant fell on him. Ghaffar raised cries to save him. Complainant stated that he tried to lift appellant on which he asked him to leave him failing which he would face consequences. Appellant gave him head blow hitting on his forehead. When complainant snatched Chhuri from the hand of the appellant, his finger of right hand became injured. When he got himself separated appellant ran away alongwith Chhuri to the same lane from where he had come. According to his evidence, the complainant is a witness to the infliction of Chhuri blows by appellant on the person of deceased Ghaffar, he separated him and he saw appellant running away from the scene of the incident. The eye‑witness account has also been furnished by P.W.1 Fazal Karim. He stated that after Iftari, he went to the mosque, and after praying when he came out of the mosque, he saw some people collected near barber shop. He also went there to see as to what was happening. When he reached there and saw that appellant holding Chhuri in his hand, came out of a nearby Gali and stabbed Ghaffar deceased at hip abdomen and then he again struck Chhuri blow at his left shoulder at the back side. Deceased Abdul Ghaffar raised cries 'Bachao' 'Bachao'. P.W. Manzoor who was there caught hold of appellant. Appellant threatened him to leave him or otherwise he would be met the same fate. Then appellant attacked Manzoor with his head and during this scuffle P.W. Manzoor also got injury on his finger of his hand. Thereafter, he ran away alongwith Chhuri. Statement of the Investigating Officer regarding the arrest of appellant and recovery of the articles Chhuri at his pointation and his blood‑stained clothes and also the fact of his having taken into possession blood‑stained earth from the place of incident has been corroborated by P.W.5 Ch. Muhammad Aslam and P.W.7 Ghulam Mustafa. P.W.3 Mushtaq Ahmed who has deposed regarding inquest report of dead body. P.W.5 Ch. Muhammad Aslam who has deposed regarding the identification of dead body during post‑mortem examination. Post-mortem examination on dead body of the deceased was performed by Dr. M.S.A. Farooqi. He had noticed two incised wounds or the person of deceased Abdul Ghaffar, one of them .was on left upper arm and the other was on left lower part of chest. According to the opinion of the doctor, injuries 1 and 2 were caused by sharp‑edged weapon like knife. According to the opinion of the doctor, deceased had died of haemorrhage and shock as a result of injuries to the body inflicted by a sharp‑edged and pointed weapon like knife. The appellant denied the charges. He has denied that blood stained Chhuri was' secured at his pointation. He has also denied about securing blood‑stained clothes from him. Appellant in answer to a question, "what else have you to say?" stated:‑- "Sir, I am innocent and have been falsely implicated in this case. One Muhammad Hussain who had barber shop and used to live with his children had a quarrel with deceased Abdul Ghaffar. He might have killed the deceased and as such news had come in the news paper daily Mashriq, dated 2‑11‑1972. I produce the newspaper As Exh.28. I am not that Muhammad Hussain as I have never married and have no children." He also produced daily newspaper Mashriq, dated 2‑11‑1972 as Exh.28. Two witnesses have been examined in defence by the appellant. D.W.1 Muhammad Saleem and D.W.2 Umer Elahi who have stated that appellant is not married and has got no children. There is another Muhammad Hussain residing in their Mohallah who is married and is barber by profession. They have also stated that Abdul Ghaffar was killed due to children fight. We have heard the learned counsel appearing for both parties and have made detailed assessment of the evidence. In view of contentions raised by both sides, we are of the considered view that prosecution case stands proved by the evidence of two eye‑witnesses namely, P.W.1 Fazal Karim and P.W.2 Manzoor Hussain complainant, which is further fully supported by corroborative evidence of recovery of incriminating articles from appellant and medical evidence. Incident took place at 6‑30 p.m. when there was sufficient light so there is no question about mistaken identity. Eye‑witnesses mentioned above have given satisfactory explanation of their presence at the spot. Fazal Karim lived at about 100 yards from the spot while Manzoor lived 34 lanes away from the spot but at the time of incident he had come out 'of the mosque after Maghrab prayers. Some inconsistencies have been pointed out in the cross‑examination of these witnesses but firstly, they are not significant and secondly, that evidence of these witnesses was being recorded after eight years. They have seen the incident and have clearly identified appellant as the assailant and have named him as such in their evidence. Complainant Manzoor Hussain has made some concessions in his cross‑examination but on the whole he has also implicated appellant as the real culprit. Complainant stated in cross examination that he was not medically examined by the doctor for his injuries for they, were minor. He does not' say that he did not receive injuries or he was not eye‑witness. This can be ignored on the ground that he was giving evidence after eight years. We do not think these witnesses were motivated against appellant in any way. Of course while assessing evidentiary value of their statements the important consideration which has always, been that whether they are partisan witnesses? Had they any cause or reason to make false allegations and whether any enmity existed between the witnesses and the appellant? Whether there was any special relationship or interest of the witnesses with deceased or the complainant party? In fact there is no suggestion that there was any enmity between the witnesses and the appellant. Nothing has been brought out to show that these witnesses had any personal grievance or grudge against the appellant. Prosecution has not alleged any particular motive in F.I.R. except that there was quarrel before incident between appellant and deceased. No further detail is given about their quarrel. Subsequently it appeared that P.W. Muhammad Ajmal, who was a young boy was approached by appellant with a proposal for unnatural offence and he declined and complained to the deceased and that was the subject‑matter of quarrel before the incident value of evidence of Muhammad Ajmal will be discussed later on and for the time being it would suffice to say that motive was not set‑up originally so nothing turns on the case if motive is not established. It is not necessary for prosecution to set‑up motive if evidence available or produced is sufficient to prove the case even without motive. P.W.5 Ch. Muhammad Aslam stated that while in custody of the police, appellant voluntarily led them 'to a 'Nala' near one 'Masjid' from where he took out blood‑stained. 'Chhuri' which was secured by the police in their presence and sealed under the Mashirnama Exh.8/A. The appellant produced his blood‑stained shirt and Shalwar which were secured in their presence and sealed at the spot under Mashirnama Exh.8/B. This Mashir has supported prosecution case before the trial Court. He is not related to the deceased. He appears to be independent witness. There is nothing in his cross‑examination to suggest that he has deposed falsely against the appellant. It is stated in Exh.8/A that appellant had put his hand in 'Gandi Nali' and took out Chhuri. It is, therefore, clear that Chhuri was concealed. P.W.8 Muhammad Younis Investigating Officer has also fully' supported this recovery of Chhuri. Report of Chemical Examiner Exh.20 also shows that Chhuri at item No.7 (sealed parcel No.4) was stained with human blood. We, therefore, put full reliance upon this evidence. However, on the question of recovery of blood‑stained clothes of appellant there is conflict between Mashir Chaudhry Aslam and Investigating Officer Muhammad Younis. Mashirnama Exh.8/B shows that clothes were recovered from the person of appellant. Place is not mentioned. Mashir Aslam has stated that appellant produced clothes from his house, which was locked and opened by appellant,. On the other hand investigating Officer Muhammad Younis has stated before the trial Court that he arrested appellant from near the place of incident and secured his blood‑stained clothes, which he was wearing. Investi gating Officer was very categorical about it and stated that he made appellant take off his clothes in the shop of barber. He had sent for other clothes of appellant from his house. On account of this conflict in the statement of Mashir and Investigating Officer and for the reason that in the report of Chemical Examiner Exh.20 for clothes of appellant at items Nos. 8 and 9 it is stated that blood had disintegrated and its original could not be determined, so we do not rely on this piece of evidence of recovery of blood‑stained clothes of appellant. The learned counsel for the appellant has contended that the evidence of Muhammad Waris and Muhammad Ajmal who could not be produced in the trial was inadmissible. His submission was that section 33 of the Evidence Act could not be invoked because of the first proviso to the above section which says that the statement of witness who was absent because of one of the reasons given in this section could only be admitted if the adversary had a right and opportunity of cross‑examination. In this context trial Court has examined as Court witness Constable Muhammad Muzammil process‑server, who has deposed at the Sessions trial that Waris and Muhammad Ajmal were not found at Karachi address. We have perused the report of the process‑server P.W. Muhammad Muzammil and found that both of them had gone to Kasur. No effort appears to have been made to‑procure them nor it is in evidence that they were otherwise unable to attend. In these circumstances Muhammad Waris and Muhammad Ajmal's evidence tendered before the Committing Magistrate cannot be admitted as evidence under section

33. Section 33 must be strictly applied and the circumstances mentioned therein must be strictly proved before depositions can be accepted as evidence against the accused. We are not satisfied that the conditions mentioned in section 33 of Evidence Act have been proved to have existed in this case in order to justify the admission of Waris and Muhammad Ajmal's depositions as evidence against the appellant. The learned Judge did not record any reason to show that he was satisfied that their presence could not be procured without undue expense or delay. In our opinion, he ought to have recorded the reasons if he was so satisfied so that the appellate Court could see whether the section was properly applied. We do not propose to rely on the statements of P.Ws. Warts and Ajmal. Before the trial Court in his statement under section 342, Cr.P.C. appellant pleaded not guilty and claimed that he was falsely implicated in place of another person of the same name, who was barber and had children. Appellant did not put this plea by way of suggestion to the material witnesses and Investigating Officer. Suggestion was put to the complainant that another Muhammad Hussain owned barber shop but no further question was put to him that he committed murder of deceased and not appellant. If this was correct he could have raised hue and cry And made complaints and applications to the higher authorities of police that he was falsely implicated. He did nothing of the sort and remained quiet. He has examined two witnesses in defence. D.W.1 Muhammad Saleem has deposed before the trial Court that there was another Muhammad Hussain Barber living in the neighbourhood with children. This witness stated that he was not present at the time of incident but came to know about it later on. Present appellant and other Muhammad Hussain were taken away by police after incident. In cross‑examination this witness stated that he did not come to know from anybody as to which Muhammad Hussain had committed murder so he could not say anything in this respect. D.W.2 Umer Illahi also deposed on the same lines and asserted that he did not know which Muhammad Hussain committed murder. Defence plea obviously is manipulated and is an afterthought. It cannot be believed. The conclusions arrived at regarding the presence of the two eye‑witnesses at the place of occurrence and their having seen the occurrence do not, however, mean that their statements have necessarily to be accepted as a whole. The consensus of judicial pronouncement is that "the grain is to be sifted from the chaff" bearing in mind particular circumstances and facts of each case. The maxim falsus in uno falsus in omnibus has all along been discarded by the Courts in this country‑. It has been held in Tawaib Khan and others v. The State P L D 1970 S C 13 that:‑- "The rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the analysis, as stated in some of the eminent judicial decision, the grain has to be sifted from the chaff in each case, in the light of its own particular circumstances." In the above noted case ocular evidence against‑both the appellants consisted of dying declaration and statement of wife of the deceased. The appeal of one was granted by giving him the benefit of doubt, while the conviction and sentence of death of other was maintained on the same evidence by sifting the evidence. It is in the light of these judicial pronouncements that we have examined the evidence of eye‑witnesses in the instant case. Ocular evidence is corroborated by recovery of blood‑stained knife. Some corroboration is also available in medical examination of Doctor who conducted post‑mortem examination to the extent that sharp‑cutting weapon like Chhuri was used to commit murder. We ere satisfied that prosecution has proved case against appellant beyond doubt. We dismiss appeal and maintain conviction under section 302, P.R.C. but reduce sentence from death to life imprisonment for reasons firstly, that there is no evidence about motive hence it could not be said as to what was background of attack and secondly, incident took place in October, 1972 and trial concluded in 1984 after a lapse of 12 years. . These grounds scan be considered as extenuating circumstances for not awarding capital punishment. In the result appeals are dismissed with modification stated above and reference is rejected. S.G.D Death reduced to life imprisonment.