1998 PLP 1749 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This appeal by leave of the Court is directed against judgment dated 25-1-1996 passed by High Court of Sindh Karachi, in Criminal Appeal aNo.210 of 1993 whereby conviction and sentence to the extent, recorded against appellant by trial Court was upheld.

2. Facts briefly mentioned are that on 9-3-1985 at about 9.00 a.m. deceased/complainant Ghulam Akbar alongwith his two cousins namely Sohbat son of Jaffar and Nooruddin son of Haidran proceeded in a tractor to Kandkot for getting their drum welded. When they reached near the shop of Ghafoor Punjabi, that complainant Ghulam Akbar moved towards north for urination. Suddenly appellant Piyaro along with his brother Hazoor Bakhsh and cousin Usman (both sicne acquitted) arrived from the direction of octroi post, and raised ' Lalkara' Appellant Piyaro was armed with revolver, whereas both acquitted co-accused had guns. Hazoor Bakhsh challenged the complainant and shouted that they would not spare him. He instigated the appellant to fire at complainant Ghulam Akbar. The appellant then fired revolver shot which caused injury to complainant near his abdomen. He fell down and started bleeding profusely. Appellant and his companions thereafter managed to escape from the vardat. Injured complainant was taken to Police Station Kandkot by P.Ws. Sohabt and Nooruddin, where he lodged F.I.R. No.24 of 1985, against appellant and his above two companions, which was recorded by A.S.I. Barkat Ali under sections, 307/114/34, P.P.C., and 13-D Arms Ordinance. Injured was shifted to Chandka Hospital, Larkana, and then to Civil Hospital, Karachi, where he expired in Operation theater on 21-3-1985. Motive alleged in the F.I.R. suggested that Rahim Bakhsh, uncle of appellant, was murdered and criminal trial in that behalf was pending against complainant and others before Sessions Court. It is alleged that complainant was attacked and killed to avenge said murder. On the completion of investigation challan against appellant Piyaro and two companions namely Hazoor Bakhsh and Usman was submitted before Additional Sessions Judge-II, Kandkot. The abovenamed three accused were charged by the trial Court on 5th June, 1986, but they refuted the charge and pleaded 'Not Guilty'.

3. Learned Additional Sessions Judge, Kandkot, considering the evidence adduced by the parties arrived at following conclusions through judgment dated 26th May, 1993:-- "In view of my findings on points Nos.2 and 3 the prosecution has been able to prove the charge against accused Piyaro and Hazoor Bux, and finding accused Piyaro guilty of offence punishable under section 302 P.P.C., I award him the sentence of imprisonment for life similarly finding accused Hazoor Bux guilty of an offence punsihable under section 114, P.P.C., award him the sentence of imprisonment for life as he instigated the accused Piyaro and abetted the offence of murder of deceased Ghulam Akbar son of Ghulam Hyder Khoso. I further order that both the accused shall pay fine of Rs.20,000 (rupees twenty thousand) each and in case of recovery the said amount be paid to the legal heirs of deceased Ghulam Akbar as required under section 544-A, Cr.P.C. and in case of default the accused shall suffer further R.I. of six months each. However, both the accused shall be entitled for the benefit of section 382-B, Cr.P.C: since the accused are facing agony of trial since 1985, and looking to mitigating circumstances a lenient view has been taken and capital sentence has not been award to the accused. Both the accused namely Piyaro son of Thango Bahalkani and Hazoor Bux son of Thango Bahalkani are on bail, they are taken into custody -and their bail bond is cancelled and surety is discharged and they are remanded to jail custody to serve out the sentence awarded to them. Since the prosecution has not been able to prove the charge against the accused under section 34, P.P.C., As such by giving them benefit of doubt I acquit them from the charge under section 34, P.P.C., there is nothing on record to suggest that accused Usman son of Jagan Bahalkani instigation accused Piyaro or abetted the offence of murder of the deceased Ghulam Akbar accused Ghulam Hyder Khoso as such by giving him benefit of doubt I acquit from the charge under section 302/114, P.P.C., He is present on bail, his bail bond is cancelled and surety is discharged."

4. Being aggreived from above judgment appellant Piyaro and co-accused Hazoor Bakhash filed Criminal Appeal No.210 of 1993 before High Court of Sindh, Karachi. This appeal was partly accepted by means of judgment, dated 25th January, 1996, whereby co-accused Hazoor Bakhsh was acquitted, but sentence awarded to appellant was upheld. Operative portion of the judgment reads:-- "The prosecution case is supported by medical evidence, circumstantial and ocular evidence of P.W., Subhat and Nooruddin who were with deceased at the time of incident, their evidence cannot be discarded/brushed aside because of their relationship with the deceased. They are natural witnesses of the incident. They were cross-examined at length by defence but they failed to contradict anything favouring the appellants, and the F.I.R. lodged by the deceased is fully supported, corroborated by prosecution witnesses and produced by Investigating Officer and the same has been taken into consideration as dying declaration of deceased. There is evidence of motive. Admittedly, co-accused Usman was extended benefit of doubt and was acquitted in the present case cannot make the whole case doubtful. Extension of limit of doubt to certain accused and conviction of others did not necessarily means that eye-witnesses had either not seen the incident or that they had falsely implicated the acquitted accused. In view of the fact that co-accused Usman has been acquitted because of his mere presence at Wardat and no active role assigned to him, case of Hazoor Bux is also on same footing with a little difference that he has been assigned part of instigation, though armed with gun, no active role of firing or causing injury to 'deceased to him, the same is evidence from medical report as there is only one injury on the body of deceased, his appeal is accepted, the conviction and sentence passed by the trial Court is set aside. So far as the case of appellant Piyaro is concerned, an active role is assigned to him. The prosecution has established its case against him. Consequently, appeal of appellant Piyaro is dismissed. "

5. Appellant then challenged his conviction and sentence before this Court by way of Petition for Leave to Appeal No.56-K of 1996. However, leave was granted on 14th May, 1996 in the following terms:-- "

2. The brief facts are that the petitioner and co-accused Hazoor Bux. and Usman were tried by the learned Sessions Judge, Sukkur, under the above provisions of P.P.C. for the murder of said Ghulam Akbar. The trial, Court acquitted Usman as no overt act was attributed to him but convicted the petitioner and said Hazoor Bux, and sentenced them in the above terms. Upon appeal, the High Court allowed the same in respect of convict Hazoor Bux but dismissed the petitioner's appeal. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Mr. Azizullah Shaikh, learned Senior Advocate Supreme Court appearing for the petitioner, has contended as follows: (i) That admittedly there was enmity between the parties, and therefore, in the absence of any reliable corroborative piece of evidence, the conviction against the petitioner could not have been maintained; (ii) That the Courts below have acquitted convicts Usman and Hazoor Bux as above on the basis of the same evidence which was found sufficient against the petitioner, which was not legal inasmuch as the Trial Court acquitted convict Usman by disbelieving the alleged eye-witnesses, whereas the High Court acquitted Hazoor Bux by not relying upon the above alleged eye-witnesses. In this view of the matter, without any reliable corroborative piece of evidence against the petitioner, distinguishing his case, the above conviction could not have been recorded or maintained.

4. We are inclined to grant leave to consider, as to whether the conviction and sentence recorded against the petitioner is sustainable keeping in view the above factual background. Leave is, accordingly, granted."

6. Mr. Azizullah Shaikh, Senior Advocate Supreme Court, for the appellant with great vehemence raised following contentions:-- (i) P.Ws., Suhbat and Nooruddin are cousins of deceased Ghulam Akbar. There existed deep rooted enrrlity between the parties. In the peculiar circumstances independent corroboration through unimpeachable source is necessary. Thus, conviction cannot be sustained on deeply interested and tainted evidence. (ii) P. W. Dr. Muhammad Kabeer who had examined the deceased at Khandkot immediately after incident has stated that one injury showing lacerated punctured type of wound 1 cm in d.m on the epigastrium region of the abdomen was caused. Whereas PQ.6 Dr. Syed Faroq Jamil Naqvi of Civil Hospital, Karachi has produced Death Report Exh: P/26 issued by Dr. Saeed A. Khan on 21-3-1985, which mentions that death was caused on account of Cardio-Pulmonary failure due to laceration in Vena-Cava. Thus, medical evidence does not correspond with ocular version, and death could not be result of injury actually caused on epigastrium Region. (iii) It is improbable that F.I.R. was recorded immediately after incident. The fact that complainant/deceased remained conscious on receiving fatal injury and could give statement is highly improbable. The F.I.R., is result of deliberations. Besides, evidence against appellant is extremely discrepant. On the similar set of evidence co-accused have been acquitted. Therefore, on the principle of consistency appellant was entitled to acquittal. Reliance is placed on the observations of case Muhammad Sharif v. State (1997 SCMR 866).

7. Raja Abdul Ghafoor, Advocate-on-Recd,, appearing for the State, opposed the appeal and emphatically agreed that:-- (i) Testimony of both eye-witnesses, namely Suhbat and Nooruddin has been completely relied upon by the two courts below applying principles of sifting grain from chaff. Besides, allegation with regard to acquitted accused namely, Hazoor Bux and Usman is quite distinct and distinguishable from that of appellant because no overt act has been ascribed to them. (ii) Ocular version is fully supported by the medical evidence and other circumstantial factors, which have been rightly believed by both the forums below. Therefore, conclusions holding appellant responsible for causing murder of complainant Ghulam Akbar does not suffer from any legal defect. (iii) F.I.R., has been lodged immediately after the incident. Appellant's active participation has been expressly described in the complaint. Averments of F.I.R., therefore, constitute dying declaration, which, thus, supplements the other evidence.

8. We have carefully perused the record and considered all aspects of the case. Firstly, it may be seen that F.I.R. was lodged by deceased Ghulamle Akbar obviously without delay. It is generally accepted that cases where report is lodged with promptitude exclude possibility of deliberations consultations or attempts to unnecessarily implicate unconnected parsons. This view finds support from the observations in cases (i) PLD 1977 SC 538 (Muhammad Ashraf v. State) and (ii) PLD 1994 SC 178 (Abdul Subhan v. Raheem Bakhsh). Incident was witnessed by two persons namely Suhbat and Nooruddin. Both of them have unequivocally stated that appellant on the instigation of acquitted co-accused Hazoor Bux had fired a shot from revolver upon deceased Ghulam Akbar causing injury at his belly. Despite gruelling cross-examination nothing substantial could be elicited to impeach their credibility. It has been critically argued that both these eye-witnesses were deeply interested by virtue of close relationship with deceased and their inter se enmity. There is no doubt rule of caution enjoins upon the Courts to seek independent corroboration if witnesses are found to be interested or inimical. Considering the facts of present case it is quite apparent that both these prosecution witnesses namely Suhbat and Nooruddin, who otherwise are related to deceased, were apparently accompanying the deceased. But the Courts below on independent appraisal of their testimony have found appellant guilty for causing fatal injury to deceased Ghulam Akbar. Therefore, on the principle enunciated in (i) 1969 SCMR 302 (Abdul Hamid v. State), (ii) PLD 1977 SC 538 (Muhammad Ashraf v. State) and (iii) PLD 1977 SC 413 (Shahzado v. State), their statements as regards involvement of the appellant cannot be conveniently ignored. Additionally, ocular version is supported by the medical evidence, which suggests .fire-arm injury on the epigastium region of deceased Ghulam Akbar.

9. Next important feature of the case relates to F.I.R., which had been lodged by deceased Ghulam Akbar with Police Station, Kandkot soon after incident. Though objections have been raised about possibility of deliberations and probability of exaggerated version to implicate appellant on account of existing animosity; but nothing tangible was brought on record by the defence to substantiate its stand. The circumstances establish that F.I.R., was lodged without unnecessary delay. P.W. Dr. Najibullah during cross-examination had stated that on 9-3-1985 when deceased was brought to Chandka Hospital, Larkana, he was conscious and able to talk, P.W.11 Barkat Ali, S.I.P., who recorded F.1.R. also affirmed that deceased Ghulam Akbar, who had received fire-arm injury on his abdomen, was fully conscious and details were recorded verbatim as narrated by him, who also signed it. It is believed that when injured receives fatal injury and labours under eminent danger, would be expected to faithfully mention true facts. Therefore, ocular account of prosecution witnesses is corroborated by the statement of deceased contained in F.I.R. which has been rightly treated as Dying Declaration. In this view we are fortified with observations made in Nemat Ali v. State 1981 SCMR 61.

10. Mr. Azizullah Shaikh, Senior Advocate Supreme Court for the appellant has emphatically urged that statements of eye-witnesses namely Suhbat and Nooruddin as regards co-accused Hazoor Bux and Usman had been disbelieved. Therefore, rule of consistency requires that their testimony should equally be rejected against appellant. It may be seen that case of appellant and co-accused is quite distinguishable. No overt act has been ascribed to any of the co-accused. Allegation concerning them merely suggest Lalkara' or instigation does not find supports from other circumstantial factors. Whereas testimony of above two witnesses unambiguously attribute to appellant an active role of causing fire arm injury to deceased Ghulam Akbar. It is now well-settled that falsus in uno and falsus in omnibus does not have universal application and in order to ascertain truth and fixing responsibility about commission of the offence amongst the culprits, "grain is to be sifted from chaff". In this behalf reference may be made to observations in cases (i) 1977 SCMR 83 (Sakin Muhammad v. The State) and (ii) PLD 1995 SC 590 (Muhammad Khan v. Zakir Hussain). At this stage it may be mentioned that in view 6f preponderant evidence about direct involvement available against the appellant and distinguishing feature whereby active role has been assigned to him by the witnesses, the principle discussed in 1997 SCMR 866 (Muhammad Sharif v. State) relief upon by learned counsel for appellant is not applicable to facts of instant case.

11. Lastly, adverting to the argument that on basis of death certificate (Exh. P/26) issued by Dr. Saeed A. Khan, on 21-3-1985 death of Ghulam Akbar was caused on account of cardio-pulmonary failure due to laceration in vena cava, it was emphasized that an injury at epigastrium region could not by any stretch be deemed to have caused laceration in region of inferior vena cava. Admittedly, there is one entry wound at epigastrium region. In the absence of exit would obviously lead was lodged inside the body. Direction of inside movement of lead is not ascertainable by surface medical examination of the body. Post-mortem was not conducted in this case. Therefore, objection of learned counsel for the appellant is repelled on the basis of observations contained in 1997 SCMR 89 (Muhammad Ahmad v. State). which reads as under:-- On the basis of this evidence, the learned counsel sought to argue that the injury was the result of a shot fired from a level higher than that of the deceased which positions, it was submitted, was not quite consistent with the ocular evidence. We find no merit in this argument as it proceeded on the sole basis of the doctor's observations which themselves were without any valid basis. The doctor in fact gave no reason/explanation for his opinion but it may have been guided by the course adopted by the bullet. The authorities on Medical Jurisprudence and the Forensic Ballisties are, however, agreed that a bullet fired from a fire-arm may take any unpredictable course on impact with bones, tissues etc. Taylor in his Principles and Practice of Medical Jurisprudence, Volume I at page 446 observed as follows:-- "The deflection of projectiles may occur not merely when they came in contact with bones, but they meet skin, muscles, tendons or, membranes; the bullect then takes its course in the spaces between the different structures. A bullet which entered at the ankle has been known to make its exit at the knee; and another, which entered at the back of the left shoulder, passed around the inside of the scapula and was found below the right ear. This deflection of bullet by slight obstacles has been ascribed partly to the obliquity with which it strikes, and partly to the rotary motion in its axis. The same deviation has been found to occur when the bullet was fired near or at a distance provided that it was fired from an old fashioned fire-arm, or was a rounded missile. The modern small-bore rifle bullet has a much greater tendency to preserve its course, though there are many published cases which indicate that deflections are frequent." Modi has also expressed the view that in some cases, it is difficult to determine the direction from which the weapon was fired ' as the bullet is so often deflected by the tissues that its course is very irregular." For the above reasons we are inclined to hold that impugned judgment does not suffer from any material defect or legal infirmity which may warrant interference. The appeal is consequently dismissed. N.H.Q./P-25/S Appeal dismissed.