1969 PLP 437 (SCMR)

Jamil Hussain Rizvi,. Advocate‑General West Pakistan (S. Nasiruddin, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State (at Karachi on the 18th and 19th November 1959). Dates of hearing : 30th October, 3rd November and 2nd December 1959 (at Lahore) ; 18th and 19th November 1959 (at Karachi). SHAHABUDDIN, J.‑This is an appeal by special leave from the judgment of the High Court of West Pakistan, Karachi Bench, whereby the convictions for the murder of one Sohrab and the offence of attempt to murder in respect of the injuries on two of the eye‑witnesses Saifal and Ganjoo alias Gunj Bux imposed on appellant Abdul Majid by the Additional Sessions Judge of Jacobabad were confirmed and his appeal was dismissed. The case for the prosecution was that on the 26th September 1957 deceased Sohrab and the two injured witnesses, Ganjoo and Saifal, when going along the bank of a canal were fired at by the appellant and four others, who were convicted by the Additional Sessions Judge of the same offences but were acquitted by the High Court, as well as one Janbeg, who is absconding. The appellant and the other accused were all armed with guns and fired at the deceased and injured witnesses saying that they were taking revenge for the murder of Abdul Haq which had occur red a few days prior to that day. The accused are relatives of the said Abdul Haq. As a result of this firing Sohrab died on the spot, while the two injured witnesses received serious injuries and one of them Ganjoo became unconscious. Three other witnesses Basham (P. W. 6), Achar (P. W. 7) and Dilwash (P. W. 8) also saw the occurrence as they happened to be on the same bank of the canal and they rushed up to the injured and one of them Basham gave the first information. Another witness Samano (P. W. 9) also came on the scene and learnt from Saifal about the occurrence. The motive for the offence was that the accused and the prosecution party though they belong to the same caste were members of two opposing section between whom there was enmity. A number of men of each party had been killed by the other and the latest of such incidents before the murder in question was the murder of Abdul Haq to whom, as stated above, all the accused were related. The injured persons were taken to the hospital and as their condition was serious their statements were recorded first by the police and then by the Magistrate. The statements recorded by the Magistrate, however, were not available at the trial. The Magistrate who recorded the statements was examined, but he did not mention the names of the persons implicated in these statements. He however, stated that Saifal named six persons as the assailants while Ganjoo mentioned five names and tried to recollect the name of the sixth, but could not name him. Nothing has been elicited in the cross‑examination of the Investigating Officer or the injured witnesses indicating that there was a material variation between the evidence of these witnesses in Court and their first statements recorded by the police. From the scene of occurrence nine empty cartridges, four '16 bore and five ‑12 bore, were secured. When the appellant was arrested he produced one ' 12 bore single barrel gun with a licence and two live '12 bore cartridges. The five '12 bore empty shells and the gun were sent to the Firearms Expert in Forensic Laboratory, Lahore, along with four test cartridges purchased from the bazar, and the opinion of the Expert was that on examining the five ' 12 bore crime shells and comparing them with the test shells fired from the said gun, he found that only one crime shell had been fired with that gun. The defence was one of false implication due to enmity, but no evidence was led. The trial Court accepted the evidence for the prosecution and convicted and sentenced the appellant and four other accused. In appeal it was contended before the High Court that as the eye‑witnesses were not only related to the deceased, but were on terms of bitter enmity with the appel lant, the other accused and the absonder, the evidence of Saifal and Ganjoo, though their presence at the occurrence could not be doubted, should not be acted upon unless it was corroborated, and for this reliance was placed on the decision of the Chief Court of Sind in Janu Khair Muhammad and others v. The Crown (1 L R 1943 Kar. 148). The learned Judges accepted this contention observing that on applying the principle of this decision to the facts of the present case, they found that the other four accused were entitled to an acquital, as the evidence against them was not corroborated. They, therefore, acquitted those accused, but confirmed the convictions of the appellant because they found that the evidence was corroborated as far as he was concerned by the opinion of the Expert referred to above. When the appeal first came on for hearing before us it was argued by Mr. Mahmud Ali for the appellant that the evidence on record did not establish the safe custody of the crime shells from the time of their recovery till they reached the Forensic Science Laboratory and that the two live cartridges that were seized from the appellant had mysteriously disappeared. Reliance in this connection was placed on the evidence of the Assistant Sub‑Inspector Ijaz Ali that he did not seal the packet containing empty shells at the time of recovery. Reference was also made to the fact that the statements recorded from the injured witnesses by the Magistrate had also mysteriously disappeared. As the conviction by the High Court was based mainly on the corroborative evidence afforded by the Expert we considered it necessary to take additional evidence with regard to the actual, custody of the crime shells between the time of their recovery and their reaching the Expert's office. Ijaz Ali, the Assistant Sub‑Inspector of Police, who seized these shells as well as his Muharrir who placed the articles in the Malkhana and a Head Constable of the Jacobabad Police Station who took the parcel to the Expert were examined. Their evidence was to the effect that the practice followed in Sind, before the Punjab Police Rules were made applicable, was to bring the articles recovered from the scene and deposit them in the Malkhana by tying them in a bundle and‑affix to it a label containing the number of the case and putting the same into a sealed box and that it was only when sending them to the Expert that they were packed and sealed, that this practice was followed in this case and that the crime shells were kept in the Malkhana in a packet on which the number of the case was , noted and under the orders of the Superintendent of Police those shells were put into a sealed packet and were sent along with four test live cartridges purchased from the bazar which however were not sealed. The memo acknowledging the receipt of this packet and the gun by the Expert mentions only the gun and the five empty cartridges. There is no mention of the four test cartridges. With reference to this evidence as well as the other evidence on the record on this point it was argued by Mr. Mahmud Ali that even the Sind Rules required that articles which were likely to be sent to an Expert should be sealed when being deposited and as that had not been done it was not safe to rely on this evidence at all. It was also contended that even if it was assumed that the cartridges that were actually received by the Expert were those that were recovered from the scene, the fact that the accused produced his gun does not establish that he used it in the occurrence, as the other accused were all related to him and it was possible that the gun was used by any one of them and he produced it as he was the licensee. The argument was that in these circum stances the corroboration which the learned Judges of the High Court were seeking in this case cannot be said to have been afforded by the evidence on record. We are unable to accept these contentions. The rules to which our attention was drawn by the learned Advocate no doubt contain a direction that articles which are likely to be sent for examination to Experts should be sealed even when being deposit ed in the Malkhana, but we have no reason to doubt the evidence of the Assistant Sub‑Inspector of Police that the actual practice in Sind has been as stated above. As regards the two live cartridges which were recovered from the appellant the additional evidence was to the effect that they were sent to Court. It is no doubt true that they were not found in Court, but on that account the evidence of the officers who had the custody of these articles cannot be disbelieved. We, therefore, see no reason to think that there has been any substitution of the articles that were actually found at the scene of offence. As regards the possibility of the gun having been used by the other accused there was no suggestion that the other accused were living with the appellant. On the other hand, in the statement received from the Central Prison, Hyderabad, addressed, to the Registrar of this Court, the appellant had stated that the gun was quite clean when it was produced. It was not his case either in this petition or at the trial that it was taken and used by someone else during his absence. The corroborative evidence was, there fore, rightly believed. Even apart from this evidence, we consider that the version of the eye‑witnesses particularly of Saifal and Ganjoo who sustained serious gunshot wounds could safely be Accepted against the appellant and the other accused. The contention that has found favour with the learned Judges of the High Court that there was bitter enmity between the eye‑witnesses and the accused does not appear to be based on any definite evidence. On the other hand, what is indicated in the evidence is that there has been a feud between these sections of the same caste and we have not been shown any evidence of personal animosity between the eye‑witnesses and the accused. . That being so, it is difficult to believe that Saifal and Ganjoo whose presence at the occur rence cannot be disputed falsely implicated members of the opposite faction who were not there. In this connection it was contended for the appellant that the fact that the statements of these witnesses recorded by the Magistrate were not available was a definite disadvantage to the accused because if these statements had then been available it might have been possible to establish that at the early stages these two witnesses did not implicate all or any of these accused. But, it cannot be doubted that the police recorded the statements of these two witnesses and no contradictions in respect of them have been proved. As regards the statements recorded by the Magistrate there is his evidence that Saifal named six persons as the assailants and that Ganjoo though he did not name the sixth assailant was definite that the assailants were six in number. Samano (P. W. 9) who took the injured witnesses to the hospital stated that when he went to the place of occurrence Saifal told him that the accused were the assailants. It is significant that this statement was not subjected to cross‑examination. There was no avoidable delay in lodging the first information and therein the names of all the accused including the one, who is absconding, are mention ed. In the circumstances we consider that the direct evidence in this case was reliable, particularly the evidence of the two injured witnesses, and on that alone the convictions could be, sustained. As for the decision which the learned Judges of the High Court have relied on, the head note has to be considered with the circumstances of that case. In fact that observation occurs after a discussion on of the evidence. There, the case and counter case were dealt with. There were two reports to the police given by either side and the learned Judges came to the conclusion that neither side had given a correct version of the events and that both sides placed before the Court false versions of what took place wholly inconsistent with the circumstances of the case. If the intention is that interested testimony should under no circumstances be relied upon rules it is corroborated; we have no hesitation in disagreeing with it. We think that the decision there was on the facts of that case and has no application to the case under consideration. There would have been justification for the view taken by the High Court in the present case if there was personal animosity between the accused and the witnesses so that it could be said that they either falsely added persons who did not participate in the occurrence or substituted some of them by implicating those against whom they had a personal grudge, but the feud here was tribal and not personal. We, therefore, find that the appellant has been rightly convicted and accordingly dismiss the appeal. Appeal dismissed