1980 P Cr (PLP)

Allah Bakhsh (P. W. 10) carried the injured persons towards Police Station Piplan, Chowk Harnoli fell on the way which was about 7 miles from. the place of occurrence and about 11 miles from the Police Station. He met A. S. I. Ghulam Abbas (P. W. 14) at the Bus Stand Harnoli and made his statement Exh. P. H. before him on the same morning at 9 a. m. and on its basis formal F.

1. R. Exh. P. H. 1 was registered at the police station at 10.15 a. m.

4. A. S. I. Ghulam Abbas (P. W. 14) investigated the case. He recorded the statements of Fateh Khan deceased, Muhammad Nawaz (P. W. 11) and Jahan (P. W. 12) and also prepared their injuries statements at Chowk Harnoli and then sent them to the District Headquarters Hospital, Mianwali. He went to the place of occurrence and recovered from the spot six cartridge cases P. 10/1‑6 and took them into his possession vide memorandum Exh. P. N. also witnessed by Muhammad Afzal (P. W. 8.) and one Ghulam Muhammad who was given up by the prosecution as being unnecessary. He arrested the appellants on 29‑7‑1975 when they appeared before him. At the same time, Jinda appellant produced his double barrel gun P. 11 with its licence P. 11/A, Muhammad Khan appellant produced his single barrel gun P. 12 with its licence P. 12/A and Muzaffar appellant produced his single barrel gun P. 13 with its licence P. 13/A. He took all these articles into his possession vide memoranda Exh. P. O., Exh. P. Q. and Exh. P. R. respectively also witnessed by Muhammad Afzal (P. W. 8) and one Muhammad who was given up by the prosecution as being unnecessary. According to the Expert's report Exh. P. E... E., of the six cartridge cases, three were found to have matched with gun P. 11, two with gun P. 12 and one with gun I'. 13.

5. Dr. Ashiq Ali (P. W. 1), the Medical Officer, District Headquarters Hospital, Mianwali, on 26‑7‑1975 at 1.10 a. m., conducted ante‑mortem examination of the deceased and found three fire‑arm wounds of entry 1/4' x 1/4" each. Of these, one was on the right upper arm, one on the abdomen and one on the right forearm with a corresponding wound of exit. The right humerous was found to have been fractured. The wounds were bleeding profusely. The deceased was in a state of severe shock and he died at 1.45 p. m. in the hospital. The doctor, on the same day at 2. p. m., also examined Jahan (P. W. 12) and found two multiple injuries. Of these, one comprised eighty fire‑arm wounds of entry 1/8" x 1/8" each on the front of the chest, abdomen and thighs. The other consisted of 10_firearm wounds of entry also 1/8' X 1/8" each on the front of the right fore arm Six small pellets were found lying in the clothes. The injury on the chest was found to be grievous. The doctor, on the same day at 2‑15 p. m.. also examined Muhammad Nawaz (P. W. 11) and found three firearm wounds, Of these, one comprised sixty wounds of entry' on the front of the chest, abdomen and thighs and the other two consisted of five wounds of entry each on the left hand and forearm and on right forearm. All the wounds measured 1/8' x 1/8' each. The doctor opined that the probable duration of the injuries of all the three persons was about six hours. The doctor, on 26‑7‑1975 at 6‑45 p. m., performed the post‑mortem examination of the deceased and found the same injuries as at the‑ time of ante‑mortem examination. In his opinion, the death had occurred due to shock and haemorrhage as a result of the injury on the abdomen which was sufficient in the ordinary course of nature to cause death.

6. The appellants pleaded not guilty to the charges and denied the allegation against them. They attributed false implication due to enmity. Jinda appellant, however, pleaded alibi and tendered in evidence documents Exh. D. E. to Exh. D. I. They led no evidence in defence.

7. The case of the prosecution rests upon the ocular‑account, the dying declaration and the recoveries. The learned Sessions Judge did not place reliance upon the dying declaration and the recoveries. The learned counsel for the State appearing before us too, did not rely upon these pieces of evidence; It was the case of the prosecution itself that Allah Bakhsh (P. W. 10) bad taken the deceased together with the injured witnesses to Chowk Harnoli where A. S. I. Ghulam Abbas (P. W. 14) not only recorded the F. I. R. Ekh. (P. H.) but also recorded the statements of the injured persons including the statement (Exh. P. W. 14/A) of the deceased which was sought to the used as a dying declaration. It is quite evident that all these statements were recorded just at one and the same time and place. Therefore, the possibility of prompting the deceased cannot be excluded. Further it is to be noticed that the dying statement (Exh. P. W. 14/A) was almost a verbatim copy of the F. I. R. In this view of the matter, it shall be highly unsafe to place any reliance upon the, dying statement. As to the rejection of the recoveries, the reasons given by the learned Sessions Judge are contained in para. 7 of his judgment which, to our mind, are quite convincing. The recovery of cartridge cases P. 10/1‑6 was effected on 26‑7‑1975 and the same were despatched to the office of the Forensic Science Laboratory on 5‑8‑1975. During this period, guns P. 11, P. 12 and P. 13 were recovered from the appellants. The parcel containing the crime empties was not submitted to the expert till after the recovery of the guns. This was in clear contravention of the instructions, which enjoin that the . crime empties should invariably be sent to the expert immediately after the recovery so that the chances of fabricating the evidence are minimized to the extreme. It was so held in Muhammad Shafi and another v. The State (P L D 1968 Lah.869). The prosecution has failed to offer any plausible explanation for the delay in despatching of the crime empties. Therefore, no value can be attaches to the recoveries. For the reasons stated above; we shall also keep the dying declaration and the recoveries from consideration.

8. The ocular account was provided by Allah Bakhsh (P. W. 10), Muhammad Nawaz (P. W. 11) and Jahan (P. W. 12) Abdul Haq and Muhammad Nawaz also cited in the F. I. R. as eye‑witnesses were given up by the prosecution? as being unnecessary. The witnesses are closely related inter se as also to, the deceased. Thus Allah Bakhsh (P. W. 10) was a brother, .Muhammad Nawaz (P. W. 11) a cousin and Jahan (P. W. 12) an uncle of the deceased. The appellants too were related inter se for Muhammad Khan and Muzaffar were real brothers while Jinda was their uncle.

9. The learned Sessions Judge did not place reliance upon the testimony of Allah Bakhsh (P. W. 10) but accepted the evidence of Muhammad Nawaz (P. W. 11) and Jahan (P. W. 12) against the appellants and found them guilty of their ,individual acts and convicted them accordingly. He rejected the testimony of Allah Bakhsh (P. W. 10) for the reasons stated in para. 10 of his judgment and we do not consider the same to be unconvincing. For the same reasons, we too would not place reliance upon his testimony and shall keep it from consideration. The learned counsel for the State appearing before us also did not rely upon the statement of this witness.

10. The other two witnesses, namely, Muhammad Nawaz (P. W. 11) and Jahan (P. W. 12) bore the marks of fire‑arm injuries on them which were quite serious. The duration of their injuries also coincide with that of the deceased. Thus, their presence at the scene of occurrence stands fully established. Both of them stated that the appellants were armed with 12 bore guns. Jinda appellant fired at the deceased while Muhammad Khan appellant fired at Muhammad Nawaz (P. W. 11) and Muzaffar appellant at Jahan (P. W. 12). They received all the injuries on the front. Since the occurrence took place in broad daylight, they would have had no difficulty in identifying their assailants.

11. The learned counsel for the appellants contended that the witnesses, apart from being interested, were inimical towards the appellants and as such their testimony may not be accepted without independent corroboration. He argued that the witnesses sere inimically disposed towards the appellants on account of the murder of Jinda's father, the divorce of Mst. Khatoon and the civil litigation between the parties. The contention has little merit. Nizam Din, the father of Jinda appellant, was murdered more than thirty years prior to the occurrence. None from the complainant party was an accused in that case and entertained any grievance on that account so much so that Mst. Khatoon, the paternal aunt of the deceased, was even sub sequently married to Jinda appellant. No doubt, he later divorced her but the relations between the parties remained cordial. Jahan (P. W. 12). admitted that they did not feel aggrieved when Jinda divorced Mst. Khatoon. Allah Bakbsh (P. W. 10) also admitted that the relations between the parties remained cordial until Jinda appellant instituted the civil suit. Thus, there was no previous enmity between the parties. The civil litigation too, which was virtually for joint possession only, cannot be said to have made them inimical towards the appellants. It is, therefore, highly unlikely that the witnesses would let the real culprits and instead falsely implicate the appellants on a capital charge. Their statements are quite consistent. The sole incon sistency pointed out by the learned counsel for the appellants was that Jahan (P. W. 12) stated at the trial that the appellants were ploughing the field with a camel whereas he had earlier stated before the committing Magistrate that a pair of bullocks pulled the plough. This is too inconsequen tial to have any bearing on the prosecution case.

12. It is also not easy to accept the contention of the defence that the entire occurrence could be the handiwork of one man. It was the consistent stand of the witnesses that all the appellants fired in quick succession, almost simultaneously. Muhammad Nawaz (P. W. 11) stated that the appellants fired from a distance of about 10/15 karams when the witnesses and the deceased were standing two to three karams apart. A reference to the site plan Exh. P. U. would also bear out the distances. To this extent, their testimony also finds support from the medical evidence. The widespread of pellets does indicate that the shots were fired from a fairly long distance as claimed by the witnesses. It can, therefore, safely be concluded that the shots received by the deceased and the witnesses were independent shots. We are also inclined to accept the claim of the witnesses that the shots were fired in quick succession for otherwise they would have, in all likelihood, made some effort to protect themselves. It seems that they had no respite even to 'turn back and try to run away which would have been a natural reflex action in such a situation. Considering all the ambient circumstances, we are of the view that all the three appellants are responsible for the shooting.

13. The learned counsel lastly contended that as the evidence of the eye‑witnesses was not accepted against the acquitted co‑accused, it may be unsafe to convict the appellants on the same evidence. The contention is without substance. The learned Sessions Judge only gave benefit of doubt to the acquitted co‑accused for 'no overt act, except firing in the air, was attributed to them. There is authority for the view that the maxim 'falsus in uno falsus in omnibus" ought not to be applied while evaluating evidence in this country if the evidence upon which the Court intends to act can safely be relied upon as representing the substantial truth. Similarly, the rule that the integrity of: a witness is indivisible has not been endorsed by the superior Courts of this country without reservation and cannot be accepted' as one of universal application. The Courts ace under a duty to sift the euphemistical grain from ,the chaff in each case in the light of its own particular circumstances. It wag so laid in Tawaib Khan v. The State (P L D 1970 S C 13).

14. The learned Sessions Judge has doubted if the F. I. R. was recorded as alleged by the prosecution. But we do not agree with him. There was hardly any mate; . al before him to draw the inference that the A. S. I., on receiving information about the murder, closed the roznamcha, went to the place of occurrence and recorded the F.

1. R. after preliminary investigation. It is to be kept in mind that the deceased and the witnesses were seriously injured. Their relations must naturally be anxious to rush them to the hospital for medical treatment. Both the eye‑witnesses stated that they were carried to Chowk Harnoli shortly after the occurrence. The inconsistency taken note of by the learned Sessions Judge that according to Muhammad Nawaz (P. W. 11) they were carried to Chowk Harnoli on cots whereas F. C. Muhammad Yousuf (P. W. 2), in his cross‑examination, stated that they arrived by bus, was hardly enough, in the face of other evidence on record, to cast a doubt on the authenticity of the F. I. R. In any event, it does not at all affect the prosecution case.

15. Jinda appellant led no evidence in defence to substantiate his plea of alibi and the documents produced by him do not pertain to the plea. However, he sought support for his plea from the statement of Bashir Ahmad (P. W. 9) elicited during the cross‑examination who stated that on the day of occurrence at 5.30 a. m. when he boarded a bus at Harnoli for Piplan, he found Jinda appellant already sitting in the bus and they both travelled together. He concluded that the bus left Qaidabad at 5 a. m. and took about an hour or so to reach Harnoli after covering a distance of about 25 miles. If that was, in fact, true, then the bus could not have possibly reached Harnoli before 6 a. m. He was, therefore, not telling the truth when he stated that he boarded the bus at 5‑30 a. m. Even otherwise, he was a formal witness and obviously, made a concession. Thus, the plea of alibi merits rejection out of hand.

16. For all the reasons stated above, we are satisfied that the appellants have rightly been convicted and sentenced by the learned Sessions Judge. There is no mitigating circumstance in favour .of Jinda appellant. The sentence of death imposed upon him is, therefore, confirmed. The sentence of the other two appellants also does not call for interference by this Court. They are lucky to have escaped from the application of the provisions o section 34 of the Pakistan Penal Code. The State has not preferred an appeal against their acquittal under section 302, P. P. C. We also do not consider it expedient to order their retrial at this stage. The appeal and the reference are disposed of accordingly. Appeal dismissed.