P L D 1972 Peshawar 92 (PLP)

The learned Sessions Judge has disbelieved P. Ws. Fateh Khan and Mst. Wala Jan as he found them to have falsely claimed to be living in the house of Mst. Mehro Jan at the time of occurrence. In reaching this conclusion he relied upon the cross‑examination account of P. Ws. Abdur Rahman and Abdul Majeed s Abdur Rehman deposing that Mst. Wala Jan lives with her son P. Ws. Abdul Wadud in his house, while the evidence of Abdul Majeed is that Fateh Khan runs a shop in the house in which he lives, but the place of occurrence being towards the back of the shop was not visible from the shop premises. Apart from the fact that Abdul Wadud, who appeared as P. Ws. was not questioned whether Mst. Wala Jan used to live with him in his house at the time of occurrence, the evidence of Abdur Rehman and Abdul Majeed was misconstrued by the learned trial Judge in order to make sure we examined the original record and found that the evidence of these witnesses is interspersed with the words "runs" and "lives" and this obviously meant to point out the present abode of Fateh Khan and Mst. Wala Jan and not that they were not living in the house of Mst. Mehro Jan at the time of occurrence. The trial Judge also misread the evidence of P. W. Abdul Majeed that the place of occurrence was situated on the back of the house for what Abdul Majeed had stated was that it was situated on the back of the shop of P W. Fateh Khan and was not visible from there. Be that as it may, it seems to us that the learned trial Judge has given undue importance to this aspect of the case because even if Fateh Khan was present in his own house and Mst. Wala Jan in the house of her son Abdul Wadud they would still be the natural witnesses of the occurrence for according to Mst. Mehro Jan the house of Fateh Khan, which he had rented from Habib, was adjacent to her house while the site plan shows that the house of Abdul Wadud is situated in the same line and is just 30 feet from the place of occurrence. So far as Fateh Khan's presence in his own house is concerned it has not been questioned by the defence, and quite rightly, because it was he who had lodged the F. I. R. of the incident at the police station, situated at 6 miles, distance, within an hour of the occurrence. Therefore looked at from whatever angle the three eye‑witnesses appear to be the natural witnesses for the occurrence had taken place at about 12 noon when the two ladies would be present in their houses and so would be P. W. Fateh Khan as otherwise he could not have possibly promptly lodged the F. I. R. within an hour of the incident. The learned Sessions Judge was also of the view that the two ladies could not have witnessed the occurrence for Mst. Wala Jan was an old lady whereas Mst. Mehro Jan could not have gone out of the house when the firing was going on in the street. Apart from the fact that this line of reasoning was wholly con jecturous, the learned Sessions Judge failed to take note of the fact that if Mst. Wala Jan could travel all the way to his Court and give evidence she and Mst. Mehro Jan both could as well manage to run to the outer door of their house after hearing the gun report and the cries of the deceased. The rest of the reasons for which the learned Sessions Judge disbelieved the eye‑witnesses are equally spurious. It is true that in her police statement Mst. Wala Jan had attributed to accused Aminullah only one shot but considering that she was an old lady of about 70 years of age she could as well have been mistaken. The evidence of Mst. Mehro Jan was doubted by him because of her assertion in the police statement that both the accused were armed with '303 bore rifles, whereas some of the injuries suffered by the deceased were caused by pellets. Surely the learned Sessions Judge should have realised that this discrepancy in the statement of Mst. Mehro Jan was not important because she had seen the two accused almost casually when a little while before the occurrence she saw them in the street while returning to her house from the house of her neighbour Naib Khan. We are also not impressed with the reasons of the learned Sessions Judge that just because there was no enmity between the parties of a serious nature it was possible that the deceased was put to death by the relatives of Dost Muhammad and Abdul Hamid for whose murders the father of the deceased was convicted and undergoing sentence, and further that no independent witnesses from the village, particularly Hanif, Arsala and Daud, who according to the P. Ws. had come to the wardat after the occurrence, were examined by the prosecution. It does not seem to have occurred to him that had the witnesses not seen the commission of the crime they would rather have suspected the relatives of Dost Muhammad and Abdul Hamid for according to his own assumption the episode over the smoking of chilam was a petty affair which could not have furnished the accused with the motive to take life of the deceased. As regards the production of independent evidence from the village or the omission of the prosecution not to examine Hanif, Arsala and Daud, all that can be said is that this was not a circumstance for which the eye‑witness account of the P. Ws. should have been disregarded. After all it is not incon ceivable that in a case of capital crime no one from the village community would like to come forward and depose against the actual culprits, but that apart no question was put to the Investigating Officer in t; is regard to enable him to explain as to why the said three persons had b en given up. We have already referred to the judgment of the Supreme Court in which the principle laid down is that the doctrine "falsus in uno falsus In omnibus" does not apply in this country; the rule that the integrity of a witness is indivisible, despite its moral virtue, cannot be accepted as one of universal applications and in the last analysis "the grain has to be sifted from the chaff in each case, in the light of its own particular circum stances". Seen in this context the evidence of the eye‑witnesses in this case appears to us to be wholly convincing notwithstanding the above discrepancies in their evidence. After all the occur rence had taken place in broad day‑light and that too almost in front of the houses of the witnesses and unless they had seen the occurrence it is inconceivable that they would falsely implicate the accused in this crime against whom they had no enmity whatever. In fact had the crime been un-witnesses the witnesses would rather have implicated the relatives of Dost Muhammad and Abdul Hamid in connection with whose murders the father of the deceased had been convicted and was undergoing sentence. The learned counsel for the accused however contended that this being an acquittal appeal the findings of the trial Judge should not be interfered with unless we come to the conclusion that the appreciation of evidence by him was perverse or foolish. Apart from the fact that the contention is devoid of force, in view of the dictum of the Supreme Court of Pakistan in the case of Ghulam Muhammad v. Muhammad Sharif and another (P L D 1969 S C 398) in which a similar contention was repelled in the following words:‑ "The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into section 417 the words of limitation employed by the High Court. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words, the order of acquittal will not be set aside on grounds of appreciation of evidence alone. This view, however, is not correct. If the reasons given by the trial Judge are of specu lative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re‑examine the evidence and draw its own conclusions from it." We are clearly of the view that the appreciation of evidence by the trial Judge was wholly perverse for the reasons we have already given; therefore we have reappraised the evidence, in view of the dictum of the Supreme Court and reached the conclusion that the eye‑witness account upon which the prosecu tion relied was wholly natural and convincing.

5. The learned counsel next contended that the medical evidence in this case belies the eye‑witnesses account and therefore it is doubtful if the witnesses had seen the occurrence. In order to appreciate this contention we would like to reproduce the evidence of Dr. Nawab Hassan Khan who had performed autopsy on the dead body of the deceased and had found on it the following injuries:‑ (1) A firearm entrance wound, 1" x ", situated on the upper part of the medial aspect of the left thigh. No gun powder marks were present. (2) Exit wound of injury No. I situated on the medial aspect of the left thigh in its middle which was 7" x 4 ". The under lying thigh bone was almost exposed. The thigh muscles at the site had been destroyed. (3) A firearm entrance wound, " x 1/3", situated in the upper part of the right side back about 2" below the right scapula and 2" away from the back bone with slight charring round the wound. (4) Exit wound of injury No. 3 situated in the middle of the chest which was 1 " x 1". (5) A firearm entrance wound, " x ", situated in the middle of the lateral aspect of the upper 3rd of the left leg with slight charring round the wound. (6) Exit wound of injury No. 5 situated on the medial aspect of the upper 3rd of the left leg and communicating with injury No. 5, which was 1" x 1". (7) A firearm entrance wound, " x ", situated on the hypothenar eminence. No charring present. (8) Exit wound of injury No. 7, situated on the medial part of the right wrist in the front which was 2" x 1 ". The wrist bone at the site was fractured. On internal examination of the dead body Dr. Khan found the thorax walls, right pleura, right lung, heart, pericardium and blood vessels of the deceased injured and his stomach empty. Death was due to shock and severe bleeding on account of injuries to the heart and lung and was instantaneous. All these injuries were caused by firearms; and probable time between death and post‑mortem was 4 hours. In his opinion injuries Nos. 1 and 3 were caused by bullets, while injuries Nos. 5 and 7 were caused by pellets. The contention of the learned counsel is that the injuries suffered by the deceased do not square up with the evidence of the eye‑witnesses. He argued that if Aminullah had fired three shots at the deceased then the corresponding three injuries on his person would be either by bullets or pellets which however is not the case, as according to Doctor Khan two of these injuries were caused by bullets and the other two by pellets. We have anxiously considered this aspect of the case but are unable to agree with the contention of the learned counsel. It is true that according to the evidence of the P. Ws. four shots had been fired at the deceased out of which three were fired by Aminullah in their presence but this would not necessarily mean that all the four shots had found their target. It appears to us that the injuries suffered by the deceased were the result of three shots. And in this assumption we are supported by the nature of injuries suffered by him because injuries Nos. 1, 5 and 7 appear to have been caused with a '12 bore gun, injury No. 1 by the use of a ball cartridge; Nos. 5 and 7 by the same cartridge containing pellets, and No. 3 by bullet. In the Book of

3. S. Hatcher "Fire arms Investigation, Identification and Evidence" illustration ox the ball cartridge is given at page 92 (it containing a single round ball), which according to the 10th Edition of Modi (page 211) D would cause large wounds and extensive laceration of the tissue and comminuted fractures of the bones if it strikes the body at right angle; its course however getting deflected if it does not come intact with the body at right angle. The fact that the entry, and exit wounds of injury No. 1 both happened to be on the medial aspect of the left thigh of the deceased support the opinion of Modi because of the extensive damage which the thigh of the deceased had suffered and also because the bone under neath was not fractured for the missile, as the skiagram shows, did not hit the thigh at right angle and so got deflected. Injury No. 3 which is undoubtedly caused by a bullet for the missile had passed through and through the chest of the deceased almost in a line further shows that injury No. 1 could not be caused by a bullet. In this respect the following observations of Modi from 211 of his Book are significant:‑ "Conical bullets produce much less laceration than round ones, and the wounds produced by them are punctured in appearance. Conical bullets rarely split in the tissues, though round ones often do. Modern, steel jacketed bullets used in army weapons have the shape of an elongated cone and owing to their great velocity usually pass straight and direct through the body without any deflection or deviation, and without causing much damage. The wounds of entry and exit are almost circular and similar in appearance without any bruising or laceration of the surrounding parts." From this discussion it is clear that injuries Nos. 1, 5 and 7 were caused with a 12 bore gun, although in regard to injury No. 1 ball cartridge was used, whereas the other two injuries were caused by one and the same cartridge containing pellets. The evidence of the P. Ws. is therefore convincing that they had seen accused Aminullah firing three shots at the deceased and although they did not claim to have seen the firing of the fourth shot they are unanimous in their version that after hearing the first shot and the cries of the deceased they rushed out to the outer door of their house and saw accused Hidayatullah also present near the deceased armed with '303 rifle. The fact that one of the injuries suffered by the deceased was as a result of bullet clearly leads to the conclusion that it was he who had fired the first shot at the deceased and was equally responsible for his death.

6. The learned counsel next contended that according to the version of the P. Ws. accused Aminullah had fired all the three shots from the same distance and yet charring was found by the Medical Officer only around injury No. 5 and not injuries Nos. 1 and

7. From this he doubted if the witnesses had seen the commission of the crime. In answer to this objection the learned Advocate‑General pointed out that according to recovery memo. Exh. P. C. the shalwar of the deceased did net have any cor responding burnt marks; no mention of any such thing was made by the Investigating Officer in the inquest report nor on the printed sheet upon which the injuries of the deceased were recorded although the form contains a specific column for this purpose. He therefore contended that the opinion of Doctor Khan that he had found charring around injury No. 5 was not conclusive. This controversy however may not detain us because charring around injury No. 5 could be justified without impairing the value of the evidence of the witnesses. Now by looking at injuries Nos. 1, 5 and 7, it would be seen that the entrance of injury No. 1 is on the medial aspect of the left thigh, that of injury No. 5 in the middle of the lateral aspect of the upper 3rd of the left leg and of injury No. 7 on the hypothenar eminence. From this it is clear that from whatever range accused Aminullah fired at the deceased the distance between the gun and the left thigh of the deceased and his hand, which he appears to have raised involuntarily in self‑defence, would be greater than the distance between the gun and his left leg. There fore it is understandable that only this latter injury was found to have charred margins whereas the other two injuries had no such charring. We are supported in this conclusion by Modi who at page 212 of his above Book opines:‑ "No blackening or scorching is found, if the firearm is discharged from a distance of more than four feet" The P. Ws. are unanimous that Aminullah had fired all the three shots at the deceased from very close range; it is therefore clear that although injuries Nos. 5 and 7 were caused by the same shot charring would be found only around No. 5 which was obviously nearer the gun barrel than injury No. 7 which would be comparatively farther away, Injury No 1 was obviously caused by an independent shot and since no charring was found around it presents no difficulty. Having reached this conclusion we might as well mention that had we entertained the slightest doubt about the manner in which accused Aminullah had fired at the deceased, we would have readily discarded the medical evidence, which is in any case perfunctory. In this respect we would like to quote the following passage from the Commentary of section 45 of the Evidence Act by Munir:-- "Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. The Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that witnesses have merely exaggerated the incident, or rely upon the medical evidence and approach the oral testimony with caution testing it with medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method. The opinion of an expert witness, not based on any well defined inexorable laws of nature; cannot be taken as decisive, especially where there is direct evidence opposed to it. The opinion of a doctor is entitled to great weight but it may be discarded if there are good grounds for doing so. The opinion of a medical witness, however eminent he may be, must not be read as conclusive of the fact which the Court has to try. Such opinion may be invited in exceptional circum stances where there is no dispute as to facts or their interpreta tion, but it must be considered by the Court as nothing more than relevant". In almost similar circumstances the Karachi Bench of the former High Court of West‑Pakistan in the case of Haq Nawaz v. the State (P L D 1959 Kar. 137) preferred the eye‑witness account to the medical evidence with the following observations appearing at page 142 of the judgment:‑ "It is thus abundantly clear that the theory put forward by the learned counsel for the appellant is not in the least supported by the views of the commentators on the treatise of medical jurisprudence. The statement of the doctor, therefore, that the firearm was used from a distance of 100 or 120 feet cannot be accepted for disbelieving the prosecution witnesses that the deceased was murdered inside the room of P. W. Ramzan." To the same effect are the views of the Lahore seat of the former High Court of West Pakistan in the case of Ghulam Nabi v. The State (P L D 1957 Lah. 109) which are as follows:‑ "A Court is not bound to accept as gospel truth each word of what a doctor states as an opinion. In law the statement o: art expert stands on precisely the same footing as that of any witness and may or may not be accepted by Court. Ordinarily, the Court will be slow to reject the opinion of a witness who is an expert in the matter he deposes about but that is not to be understood to mean that the word of an expert is like law to the Court called upon to deal with his evidence as a witness."

7. Having discussed the prosecution evidence as a whole let us now refer to the statements of the accused when they were examined by the trial Court. The statement of accused Hidayatullah is that a few days before the occurrence he had gone to Swat for sight seeing, whereas according to accused Aminullah he had gone to Lahore for the same purpose. In other words both of them had taken the plea of alibi and consequently it was their burden to produce some evidence to support it. However they chose not to produce any evidence in that regard and contented themselves with their bare assertion. The fact that soon after the occurrence they had disappeared from the village and did not surrender to the police until after ten days, would show that they had absconded and therefore this circum. stance would serve as corroborative evidence of the testimony of the eye‑witnesses if at all it needed any corroboration. The law in this respect is well settled but all the same we would like to quote one judgment of the Supreme Court of Pakistan in the case of Gul Hassan and another v. The State (P L D 1969 S C 89) in which their Lordships approved the judgment of the High Court convicting the two accused, albeit on the testimony of interested witnesses, but corroborated by the fact that after the occurrence they had absconded. In view of this discussion we are satisfied that the prosecu tion has succeeded to prove its case against the two accused beyond reasonable doubt and that their acquittal by the trial Judge was completely unwarranted. The only question which now remains is as to what sentence should be awarded to them, as after their acquittal by the trial Judge on 25‑3‑1968 they have enjoyed their liberty, secured in the belief to have escaped the capital sentence. There was some confusion in regard to this question previously but it has been finally resolved in the latest judgment of the Supreme Court of Pakistan in the case of Asadullah v. Muhammad Ali and 5 others (P L D 1971 S C 541). The following passage from page S49 of the judgment may be reproduced with advantage:‑ "Question, however, arises whether the sentences of death imposed on the respondents by the trial Judge under section 302 read with section 149, P. P. C. should also be restored. It was urged on their behalf that since they had acquired an expectation for life under the order of the High Court it was not a fit case to exact the extreme penalty of the death from them. The doctrine of expectation of life held out to an accused person by a subordinate Court is primarily applicable to cases involving question of limitation. If the period prescribed for filing an appeal or petition for special leave to appeal G against an order of acquittal has expired, the accused person acquires a right which cannot be taken away. A case in which the Court below had passed a patently erroneous order causing grave miscarriage of justice would not fall ipso facto within this doctrine, but if inordinate delay occurs in the disposal of an appeal, against order of acquittal the appellate Court may refrain from exacting the extreme penalty of death. In some reported cases this Court has refrained from inflicting death sentence oar ground of delay, yet there is no universal rule that if the subordinate Court has on an erroneous or perverse view acquitted an accused person resulting in grave miscarriage of justice the appellate Court cannot impose the sentence of death because of the very order of acquittal. Indeed sentence of death is the ordinary penalty for the offence of murder and the lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed. If the doctrine of expectation of life was a rule of universal application. High Courts would, in no case, be competent to enhance the sentence awarded by the lower Court, yet in a number of cases various High Courts of the sub‑continent have in the past enhanced sentences of transportation to death if the ends of justice so required. The sentence to be awarded in an appeal against an order of acquittal will therefore, depends on the facts of each case. It is clear that their Lordships disapproved the notion that just because the accused had been acquitted by the trial Judge he should not be awarded the extreme penalty of death even if the appellate Court comes to the conclusion that the acquittal judgment was erroneous and had caused grave miscarriage of justice. It is true that according to their Lordships each case has to be considered on its if inordinate delay has occurred in the disposal of appeal against the acquittal judgment then the appellate Court may refrain from exacting the extreme penalty of death iron the accused. But this principle was nor applied by their Lordships in the case of one accused in the above case who was sentenced to death, because the crime committed by him was found to have been gruesome in that after having put six members of a family to death he and the other respondents had put their bodies to fire, notwithstanding the fact that his appeal in the Supreme Court seems to have remained pending for almost five years. In substance therefore what the Supreme Court has laid down is that inordinate delay in the disposal of the appeal against the acquittal judgment would be a ground for which the appellate Court may not exact the extreme penalty of death from the accused, but he would be disentitled to any such discretion if the murder committed by him was gruesome or accompanied by the display of callousness or perversity. The facts of this case have already been noted and when seen in the context of the above principles it is clear that both the accused in this case should be awarded the extreme penalty of death notwithstanding the fact that their appeal has remained pending in this Court for three years. From the evidence on record it seems to us that perhaps both of them were hired assassins and further that the manner in which they shot the deceased to death was wholly callous. The fact that this was so is clear from evidence on record because they not only shot the deceased as a result of three independent shots, one by a rifle and the other two by '12 bore gun, but they also killed him in the broad daylight right in front of his own house without the least fear that they would be apprehended by the villagers. We therefore allow this appeal, set aside the judgment of the learned trial Judge, convict each one of the two accused persons under section 302/34, P. P. C. for the death of late Atta Muhammad and accordingly award to each one of them the extreme sentence of death. K. B. A. Appeal accepted.