1983 P Cr (PLP)

SHER ZAMAN CHAUDHRY, J.-This appeal arises out of the judgment o the High Court dated 14-7-1980, whereby the appellant's appeal against his conviction recorded on 30-12-1979, by the District Criminal Court Mirpur was partly dismissed. The facts of the prosecution's case according to F. I. R. lodged by Mst. Gulzar Begum on 15-3-1975 at about 10-30 p: m. are that her daughter Mst. Shafait Begum was married to Abdul Khalique appellant about 9/10 months prior to the occurrence. While Mst. Manizah Begum her sister was married to Muhammad Rafique deceased. From among the various items of Jewellery given to Mst. Manizah Begum the sister of appellant by her in-laws at the time of her marriage, the gold bangles were however, borrowed ones. These bangles in fact belonged to Afst. Zahida Begum another daughter of the complainant and were borrowed from her on temporary basis.

2. After the marriage things went smooth for a while but trouble seems to have started when Mst. Manizah Begum was asked to return the bangles as those bad to be given back to Mst. Zabida Begum. She refused and instead went to her parents' house and left those bangles there. The: appellant sided with his sister and started maltreating Mst. Shafait BeguM his wife and thus the relations between the complainant party sand the appellant got strained. About 3 weeks prior to the occurrence these gold bangles, through the mediation of Gul Nawaz, the brother of complainant, were however, returned to the complainant party. By the return of bangles the matter should have ended there but it did not Abdul Khalique appellant kept nursing the grudge against the in-laws of his sister. His attitude got more antagonistic towards his wife. Mst. Shafait Begum, Mst. Manizah Begum, his sister, left in-laws and went to reside with her parents after the return of bangles. On the afternoon of 15-3-1975, as claimed in the F. I. R. Mst. Shafait Begum, after having been beaten by her husband, the appellant, left his house and went to her parents.

3. A short while before evening Abdul Kbalique appellant went to the house of complainant. Along with him were Abdul Ghani, Muhammad Yunus and Ali Muhammad as `Punchait' members. The object was to bring about reconciliation between the parries. At the time of their arrival Fazal Hussain, the father of Mst. Shafait Begum and Muhammad Rafique her brother, were not present. Both Fazal Hussain and Muhammad Rafique however, came back while the appellant, Abdul Ghani, Muhammad Yunus and Ali Muhammad were still there. Abdul Ghani initiated the dialogue for reconciliation. Fazal Hussain complained about the attitude of the appellant towards his daughter Mst. Shafait Begum. The appellant thereafter got up and told the respectables to go away and remarked that he would decide the matter himself. With these remarks he left the house of his in-laws. So did the others except Abdul Ghani.

4. After a while armed with 12 bore gun came back the appellant. He announced that he will kill all of them. Complainant, her husband Fazal Hussain, Muhammad Siddique son of complainant, Mst. Shafait Begum her daughter and Abdul Ghani were present in the house at that, time. Rafique her son while standing in the door was filed upon by the appellant and was hit at the right side of his face and neck. After this fatal shot the appellant ran away. Fazal Hussain and his son Muhammad Siddique gave a chase. While coming back, when they were still in a lane adjacent to their house they were fired upon and injured. Muhammad Rafique and Fazal Hussain lost their lives while Siddique was seriously injured as a result of firing by the appellant. After the second shot, gun is clamed to have been snatched away from the appellant by Abdul Ghani. The complainant saw her husband and son killed and another son injured. The occurrence was also witnessed by Abdul Ghani, Muhammad Yunus and Mst. Shafait Begum. Accompanied by Abdul Ghani and Gul Babar, Mst. Gulzar went to the Police Station Mirpur and reported the matter to the police at about 10-30 p. m. of the same evening. After the completion of investigation the appellant was forwarded to the District Criminal Court to stand trial under section 302/307 and 148, A. P. C. read with section 5/15 Islamic Act.

5. After the trial the appellant was convicted and sentenced to life imprisonment under section 24 read with section 3 of Islamic Penal Laws Act, for the murder of Fazal Hussain. For killing Muhammad Rafique he had to pay Rs. 45,000 by way of 'Diyyat' and Mst. Manizah Begum the wife of Muhammad Rafique, who happened to be the sister of, the appellant, had compromised. For causing injuries to Muhammad Siddique he was sentenced o 5 years' imprisonment by way of `Tazeer' and Rs. 5,000 as `Hakoomat-i Adal'. Dissatisfied with this order of his conviction passed by the District Criminal Court dated 30-12-1979, both the appellant and the State challenged the correctness of it in the High Court. The appellant by way of appeal and the respondent through a revision. petition. The appellant appealed for the quashment of the judgment of the District Criminal Court while the State sought enhancement of the sentence. The learned High Court vide its judgment dated 14-7-1980, upheld the judgment of the trial Court except that its finding on the point of 'Hakoomat-i-Adal' was set aside. It s this judgment of the High Court the reversal of which is now being sought through this appeal.

6. While arguing the case Kh. Ali Muhammad, the learned counsel for the appellant submitted that the impugned judgments of the High Court as well as that of the trial Court suffer from inherent infirmities. The Courts below according to the learned counsel, ignored the basic norms of appraisal of evidence and failed to consider some very important legal points involved. The judgment of the High Court could not be sustained, be submitted, for the following reasons :- (i) hat not only the F. I. R. was delayed but the exact time of occurrence in view of evidence on record was shrouded in obscurity. This fact, although sufficient to make the prosecution's case doubtful, was not adverted to by the High Court. The judgment, therefore, was bad in law. (ii) hat there being a complete departure from the case disclosed in F. I. R. and a different story developed during the evidence stage was a fact sufficient enough to destroy the prosecution's case, yet the point was not appreciated in its correct perspective. (iii) hat independent witnesses although admitted to have had witnessed the occurrence yet none was produced. The case, therefore, was doubtful. (iv) That all the recoveries were bad and could not be used in evidence. (v) That although the report of the ballistic expert was received by the police yet withheld, was a fact sufficient to make the whole case doubtful. (vi) That the Courts below also erred on the point of general appraisal of evidence. Taking up the first point regarding the F. I. R. it was argued that since occurrence was alleged to have taken place at about evening time which could be at the best 5/6 p. m., yet the report was claimed to have been made at 10-30 p. m. It is in the evidence that complainant travelled by Suzuki van. The distance of Police Station could at the most be covered within 45 minutes or an hour. There still was a gap of 3 to 3 hours which remained unexplained. This delay according to the learned counsel casts a serious doubt on the story of the prosecution's case.

8. After going through the evidence it is found that the complainant accompanied by Abdul Ghani and Gul Bahar left her house for police station. They first had to walk a distance of about 2 miles. Then Abdul Ghani went to arrange for the transport. It was after some time that the arrangement was made. Besides, we cannot expect the thing to happen strictly in a mechanical fashion. The lady had undergone a heart-breaking experience. She had seen bodies of her murdered husband and a son drenched in blood and her second son having been injured and bleeding. The extent of her mental agony and the grief can well be imagined. It must have taken quite a while to recover from the initial shock. Under these circumstances the arguments of the learned counsel for the appellant has no substance. There has been no delay in making the F. I. R. which could adversely affect the prosecution's case. Besides, delay per se, is never a ground to hold the prosecution's case doubtful. It is indeed of considerable importance only when the identity of the accused is in dispute or the circumstances suggest the possibility of some innocent persons having been roped in. There is no such suggestion in the present case and the evidence on record warrants no such approach. Delay at the best could be a suspicious circumstances in the prosecution case, which puts the Court on its guard in appraisal of the evidence. As it has already been held that there has been delay in lodging the F. I. R. in the present case, it will serve no useful purpose to pursue the point any further.

9. With regard to the second point of his submission that even the time of occurrence, in view of the contrary statements of P.Ws. was uncertain, we find that the plea is not well-founded. We have carefully one through the evidence. All the P.Ws. who are witnesses of occurrence are pretty clear about the time which they described as a short while before the sun set or the time when the sun was about to set. Simply because the P Ws. did not state the time in terms of hours and minutes it could not be said that time of occurrence remained in obscurity.

10. The learned counsel for the appellant next argued that there being complete departure from the case as initially disclosed in the F. I. R. a different story had been developed during the evidence stage as such the prosecution s case had become doubtful. The conviction, therefore, could lot be sub stained. Elaborating the point the learned counsel pointed out that there had been a complete departure from the prosecution story that Fazal Hussain and Mohammad Siddique were fired upon and injured while they were passing through a nearby lane after giving chase to the appellant. Mst. Gulzar Begum and Muhammad Siddique had changed the original version and in the evidence before the Court stated that Fazal Hussain deceased and Muhammad Siddique were fired upon and injured while they were in their courtyard and not in the lane. We have checked the evidence and it is found that P. W. Mst. Gufzar Begum the first informant had shifted her stand from the one disclosed in the F. I. R. so did Muhammad Siddique.

11. The question now, therefore, is as to what is the effect of it? Whether whole of their statements ought to be discarded or their evidence is to be sifted. The correct legal position would be to have careful appraisal of the whole statements then after carefully sifting the evidence to accept the correct and reject the incorrect part of it. It will be wrong to throw away the whole statements just because they are found to be incorrect on one or some of the points. This view has consistently been followed by this Court as well as the Superior Courts of Pakistan. All that can be said to it is that in such a situation the Court should be at its guard and examine the evidence with utmost care and caution. Similar was the view expressed by the learned Judges in Muhammad Sharif v. State (P L D1978 S C (AJ&K)146). At page 154 of this judgment the learned Judges in the Supreme Court observed :- The maxim falsus in uno falsus in omni bus is a dangerous one specially in this part of the country, for if whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with." Again in Twaib Khan's case (P L D 1970 S C 13) similar was the view of the learned Judge of the Supreme Court. Mr. Justic: Sajjad Ahmad observed in the following terms :- "The maxim falsus in uno falsus in omni bus has all along been dis. carded by the Courts in this country. Similarly 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 last analysis as stated in some of the eminent judicial decisions, the grain has to be sifted from the chaff in each case in the light of its own particular circumstances."

11. In the present case though we do not find any fault in the main story by P. Ws. Mt. Gulzar Begam and Mohammad Siddique yet they are found to be incorrect on the point that Fazal Hussain deceased and Mohammad Siddique were hit when they were in the courtyard. There is evidence of P. W. Abdul Ghani to the effect that they were in the lane. Besides blood stained stone's and soil had been recovered from the lane. The discrepant statements of P. Ws. referred to above are not sufficient to make the prosecution case doubtful. The argument on the point having no force is therefore, rejected.

12. It was next argued that since the presence of the impartial witnesses like that Adalat Khan, Ghulam Ali and Ismail at the scene was admitted by P. W. Abdul Ghani, their non-production as witnesses in the case makes the case doubtful and the conviction unsustainable. Controverting the plea the learned Advocate-General instead submitted that the point so raised by the learned counsel for the appellant was without any force for the reasons :- (a) That as the evidence on the r cord is clear and of a convincing quality it matters not if all the persons witnessing the occurrence were not produced by the prosecution as P. Ws. (b) The those persons as pointed out by the learned counsel for the appellant admitted to be present on the scene and are not- shown as P. Ws. in the calendar of witnesses so according to the submissions of the learned Advocate-General it could not be said that the prosecu tion held back those witnesses. (c) That if at all those persons as claimed by the appellant's side were in fact present they might not have shown their willingness to come forward as P. Ws. It is a general trend that people avoid to involve themselves lest they might incur the displeasures1 and enmity of the other party. (d) That if those persons as claimed by the appellant were in fact present they could very well be examined in defence to shake credit of the prosecution witnesses.

13. Reliance was placed on P L D 1976 Lah. 677 and P L D 1978 Kar.

964. He further argued that though the attitude of some people may be deplorable yet the prosecution case may not be thrown out simply on that account. We have gone through these relevant judgments. In P L D 1.976 Lah. 677 relevant page 684 Mr. Abdul Jabbar Khan Judge observed that :- "It is common feature in our society that usually people do not offer themselves as witnesses to support the prosecution case before the police or in the Court as it entails loss of time as well as earns enmity of those who are being prosecuted." Similarly in Abdul Rauf v. State (1) Mr. Justice Z. A. Channa in para. 8 of his judgment observed :- "It is frequent experience of criminal Courts that many a gruesome (1) P L D 1978 Kar. 964 tragedy in enacted with scores of onlookers around yet the assassin is allowed to operate without any let or hinderance and is allowed to escape from the scene with impunity. Not only that these inde pendent onlookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisan."

14. After carefully considering the arguments of the learned counsel for the appellant and the Advocate-General we are of the view that mere fact that the presence of some other persons other than those produced by the prosecution, is admitted by P. W. Abdul Ghani in itself is not sufficient enough to cast doubt on the veracity of the prosecution case if the evidence otherwise rings true.

15. We have carefully examined the evidence. Not a single question had been put to the Investigating Officer as to whether it had come to his knowledge during the investigation that some other persons apart from those mentioned in the calendar of witnesses were present when the crime was committed or if he had examined those others and if not for what reason. Besides the defence was at liberty to examine those others in defence. The attitude though uncommendable and unhealthy yet all the same seems to have developed in our present society that people avoid coming forward as witnesses despite the fact that they had seen the crime having been perpetrated. We cannot be oblivious of this phenomena in our society. It will be unjust to throw the prosecution case away on that score. The position would of course be different if the independent witnesses were available and willing to depose yet were withheld lay prosecution. No such position exists in the present case. The argument, therefore, is without an substance.

16. On the point of recoveries it was contended that the recoveries of crime weapons i.e. .12 bore gun and the crime empties having been made in most illegal fashion could not be used against the appellant. Besides the ballistic expert's reports with regard to the crime weapon and the crime empties have been held back by the prosecution; This could not be regarded connecting the accused with the occurrence.

17. After careful perusal of the evidence we find ourselves in agreement with the learned counsel for the appellant. These recoveries under law cannot be used in evidence against the appellant. But it i to be determined as to whether on account of no recoveries o there being defective recoveries the whole prosecution case is to disbelieved and discarded. The correct position with regard to the recoveries if found defective would be that the main case if otherwise being not of convincing quality would of course be a circumstance having important on the ultimate fate of the case. If however, the case otherwise, is proved on the basis of convincing evidence mere defective recoveries would not be sufficient to destroy the prosecution case. The conviction could still be recorded if other evidence is found to be of convincing quality and of a nature on which reliance could safely be placed.

18. Similar views were expressed in a judgment of this Court in a case titled Mehtab Khan v. State (P L D 1979 S C (AJ&K)23). For the reasons listed above submission on the point is, therefore, without any substance.

19. This brings us to the last point of objections raised by the learned counsel for the appellant. It was submitted that the -learned High Court as well as the trial Court erred on the point of general appraisal of evidence. Basic norms of appreciation of evidence have been ignored. The judgments both by the High Court as well as that of the trial Court were therefore, according to the learned counsel vitiated. Developing the arguments on the point it was submitted that P. W. Mst. Gulzar Begum the first informant happened to be the wife of Fazal Hussain and mother of Muhammad Rafique deceased. Muhammad Siddique the injured person was her son. She being the interested witness and inimical one her evidence could not be relied upon without a strong and independent corroboration. The evidence of injured person Muhammad Siddique a boy of 13 years age was unworthy of any reliance for the similar reason. Besides, their evidence is full of discrepancies and contradictions. It remained uncorroborated as the recoveries were defective and could not be used as corroborative piece of evidence. The evidence of P. Ws. Abdul Ghani and Muhammad Yunus (Muhammad Yunus was declared hostile) could not be regarded as coming from independent witnesses. They were proved on record to be partisan and interested. Looking at the evidence as a whole it was not worthy of any credence. The conviction thus based on the evidence of dubious quality could not be sustained.

20. In the light of the submissions we now advert to the merits of these. We have carefully gone through the evidence and considered with utmost care. We being alive to the points raised by the learned counsel for the appellant and the defects pointed out by him, have weighed the evidence of P. Ws. Mst. Gulzar Begum and Muhammad Siddique an injured witness. In the light of the principles regarding the appraisal of evidence as enunciated and listed in the earlier part of our judgment, their evidence on the point of place where Fazal Hussain and Muhammad Siddique were hit, is found to be incorrect. But apart from that their evidence on the main story is found to be truthful. It is of quality on which reliance could safely be placed. Discrepancies on the point of insignificance hardly matter much. In fact though are bound to be in the statements of truthful witnesses unless of course they are tutored then perhaps parrot like narration could be expected of them. It is always the quality and not quantity of the evidence that matters, of course with one exception i. e. under the Islamic Penal Law Act, 1974, where in case of `Qisas' evidence of two male Muslim majors is the requirement. But then it was for that reason that the learned District Criminal Court resorted to section 24 read with section 3 of Islamic Penal Laws. Apart from the above-stated exception the Courts have always looked for the quality and not the quantity. If evidence is of quality inspiring the confidence then the conviction could be recorded even on the testimony of a single witness, may there be no corroboration. All that matters is that could the Court safely place reliance on such an evidence. Same was the yardstick with the learned Judge Mr. Justice Sinha while deciding the case titled Vedivelve Thevar v. State of Madras (P L D 1957 S C (Ind.) 525). Again in Tawib Khan's case despite the fact that dying declaration was disbelieved and there being no recoveries yet the evidence of the widow of the deceased a witness of occurrence was relied upon by the learned Judges although the occurrence had taken place in the open while the deceased and his widow the P. W. were on their way back after ploughing their field. Same principle was also accepted in P L D 1980 S C

225. In the present case there are 4 witnesses of occurrence namely Mst. Gulzar Begum, the first informant, Mohammad Siddique injured witness, Abdul Ghani and Mohammad Yunus. Their evidence on the material particulars of the case is indeed of a quality that safe reliance can be placed on it.

21. We find no cogent reasons to differ with the High Court on the point of appraisal of evidence. On the point of corroboration it may be stated that it is rule of prudence and sought for only in case where Judges though satisfied on evidence but have some lurking suspicions in their minds. It is in fact a sort of reassurance or what may be termed as a confirmation of their belief about the veracity of the case. If on the other hand the evidence is such that the Court feels safe in placing reliance on it then the necessity of looking for the corroboration is relegated to the point of no importance.

22. From the evidence on record in the case in hand there is sufficient corroboration as well. The evidence of P. W. Abdul Ghani is above reproach. Besides there is medical evidence and recoveries of blood-stained soil and stones from the front of the door and then from inside of the room as well as from the lane where Fazal Hussain and Mohammad Siddique had fallen after having been hit by the gun fire by the appellant are a strong corroborative evidence. The impugned judgment of the High Court is well reasoned and based on sound appraisal, of evidence. We find no fault in it. In ultimate analysis finding no force in the appeal we reject it. However, before parting with the case we would like to state that in view of the mandatory provisions of law section 382-B of Cr. P. C. amended Ordinance of 1982, the appellant be given the benefit of period permissible under it towards the adjustment of his term of imprisonment. The jail authorities may be informed accordingly. S. Q. Appeal dismissed.