2003 PLP 499 (YLR)

"

10. Mr. Mahmood Ali Qasuri, learned counsel for the appellant, however, contended that the testimony of the Ballistic Expert, would have no evidentiary value, as crime weapon, had been sent to him, after a delay of about 2 months. He has sought reliance from Rehman and others v. The State PLD 1966 Lah. 464, in which a delay of two weeks was not considered to be fatal. It is true, that inordinate delay in the despatch of crime weapons, would detract from value of evidence provided by such weapons, but we are also cognizant of the conditions in Baluchistan; the difficulties of communication and transport and the long distances involved. In Wazir and others v. The State PLD 1960 Kar. 674 there was a delay of about three months and the weapons of crime were not sealed at the spot. In the circumstances of the case we have chosen to accept this piece of evidence."

15. We are also fortified in our above view by another judgment of the Honourable Supreme Court in the case of Rab Rakhio v. The State (1992 SCMR 793) wherein it was observed at para. 12 in the judgment as follows:‑‑ "

12. From the above‑quoted portion of the judgment of the learned Additional Sessions Judge, it is evident that there was cogent reason for not having a Mashir of the locality from where the recovery was effected at the pointation of respondent No.

1. Even if we were to ignore the evidence of P.W. Photo for the above reasons, the testimony of the S.H.O. namely, of P.W. 19 Muhammad Aslam Soomro remains in the field, which can be relied upon as has been held by this Court in the case of Muhammad and others v. The State PLD 1981 SC 635, wherein inter alia it has been held that testimony of a policeman as to witnessing recovery of articles from an accused cannot necessarily be disbelieved merely because of his being policeman. Taking up the above second limb of the above fifth reason, it may be pointed out that defence has not brought out anything on record through the cross‑examination to indicate that the sealed parcel of the empty was tampered with before the recovery of the pistol or after the recovery of the pistol, nor anything has been brought out through the cross‑examination to cast doubt as to the recovery of the pistol from respondent No.1. There is no doubt that there was delay in despatching of the above parcel to the Ballistic Expert, but simpliciter delay cannot nullify the evidentiary value in the absence of attending circumstances casting doubt as to the genuineness of the recovery. In this regard, reference may be made to the following portion of the judgment of this Court in the case of Sikandar and 2 others v. The State PLD 1981 SC 477:‑‑ "Coming to the fourth and the last contention of Mr. Brohi, relating to the delay in sending the blood stained articles to the Chemical Analyser, the High Court has been pleased to repel the same in these words:‑‑ 'From the record it appears that the articles are first sent by the S.H.O. to the Deputy Superintendent of Police who forwards them to the Government Chemical Analyst. There is no cross examination of the Investigating Officer or the S.H.O. and nothing has been brought out to suggest that the police had played foul and had created false evidence in the case. In our view, the delay in sending the articles for analysis has to materially affected the merits of the case. Mr. Broohi, however, invited our attention to the case of Wazir v. State PLD 1960 Kar. 676 in support of his contention that delay simpliciter must result in rejection of evidence of the Chemical Analyser. In this case, however, the evidence of the Ballistic Expert was not accepted, because there was no evidence that the empty cartridges from the crime weapons recovered were made into sealed parcels at the spot coupled with the fact that there was inordinate delay in sending the crime empties and the weapons to the Expert. In a recent case of Noor Alam v. State PLD 1978 SC 137, the evidence of the Expert was accepted, notwithstanding the delay in forwarding the crime weapon and the empties to the Expert for the reason:‑‑ '...There is also no evidence to show that the empties and the gun were not kept in sealed parcels, as soon as they were secured. The delay in forwarding them has to be considered in this background. There is no evidence that the sealed parcels were tampered with. And, on the other hand, as there might have been an explanation for the delay in forwarding the sealed parcels, the appellant should have cross‑examined P.W. Nek Muhammad Khan about the delay in forwarding the gun and the empties. As he did not, the cases cited do not help the appellant's case, and we agree with the view of the High Court that the recoveries have been proved . . . . . As in the case of Noor Alam, the evidence in the present case is that the articles found stained with blood were secured under a proper Mashirnama and properly. sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross‑examined as to the delay in sending parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence."

16. The complainant S.H.O. M. Imran P.W.1, was transferred during the pendency of investigation which would have been one of the causes for sending the weapons to Ballistic Expert with delay.

17. The availability of the empties at or near the Wardat at the first place may indicate that there has been use of fire‑arms in the incident, yet the very purpose of their secureness, always, is to know its link to the weapon from which it is fired. The evidentiary value of secured empties in absence of the weapon would come to naught. Thus it was not necessary to collect all the fired empties, which was not possible to do, as the place where the encounter took place was cultivation and wild bushes. In any case securing of less number of empties than fired would not have any adverse effect on the prosecution. Obviously, for the purpose of matching with the weapon secured, even one or two empties might be sufficient.

18. Complainant S.H.O. M. Imran (Exh.15) has clearly stated "that there was paddy crop at the Wardat therefore, we only recovered 32 empties of bullets". He has further stated in cross, "that we had not seen any female members in the house except the six persons in the Otaq". He has also stated that, "nobody can accompany us to dacoits".

19. P.W.2, P.C. Manzoor Ahmed has deposed that, "Nandho Sajan was accompanied with five other dacoits, who also fired. Police also fired in their defence. The encounter continued up to 11‑30 in which H.C. Taj Muhammad was killed, P.C. Noor Muhammad was killed. I and H.C. Rajib Ali and P.C. Sikandar Ali were injured. We were referred for treatment through A.S. I. Ehsan Ali Gaho. I fired 80 rounds".

20. P.W.4 H.C. Rajib Ali (Exh.19) injured witness, has also deposed that D.S.P. Gambat directed the accused to throw the arms. We also fired in our self‑defence. He has further deposed that, "he fired 85 rounds from his rifle".

21. P.W.8 S.H.O. Liaqat Ali (Exh.24) has deposed on entire occurrence and his evidence is consistent with the other prosecution witnesses. He has clearly stated in his cross‑examination that police constables were injured and killed at 11‑30 a.m. Nandho Sajan was killed at 12‑30 p.m. and the accused were arrested at 4‑30 p.m. He has denied the suggestion that the accused were arrested from their houses.

22. The contention that the evidence should not be believed as all the P. Ws. are police officers is just without any force and is hereby repelled.

23. There is no denial of the occurrence nor any objection to the medical evidence by defence. The P.Ws. had no animosity or any motive for false implication of the appellants or they had any special interest in their conviction. The record of cross‑examination is silent on this aspect. No plea of substitution was raised at any stage. Nothing has been brought out in cross‑examination to discredit the testimony of prosecution. The recoveries too have been made in quite a realistic manner.

24. It was observed in the case of Muhammad v. State (1993 PCr.LJ 1632), while dismissing the appellant's appeal by a learned D.B. of this Court comprising Sayed Haider Ali Pirzada, J. (as he then was) and Nazim Hussain Siddiqui, J. (now Hon'ble Judge. Supreme Court) that "if witness deposes on a fact in examination‑in‑chief and the correctness of said statement is not challenged in cross‑examination, the legal presumption would be that said statement has been admitted by the party against whom the same has been brought on record".

25. The fact that the people are scares of, these days to offer themselves to act as witness, is now but a well known and judicially recognized fact. Reference is made to the case of Amrood Khan v. State (2002 SCMR 1568). It is, if we may say so, a hard fact and a reality of present day life and it is mainly for want of protection to their life, liberty and honour and the compelling circumstances of insecurity in which the rural populace of the province in particular and the city dwellers in general are living.

26. Thus, it would appear from the evidence that many material parts of P.Ws. statements have not been controverted or challenged, and are left unrebutted with the result that they would have the evidentiary value.

27. The case‑law referred in support of the appeals is not relevant and is distinguishable, hence is not applicable to this case. It need not be discussed.

28. Having considered the evidence on record in its entirety and having applied our mind to the case, we are convinced that the prosecution has been able to prove its case against the appellants and they have teen rightly convicted and sentenced.

29. It may however be observed that the appellants were responsible for forming an unlawful assembly and acting in furtherance of their common intention or community of intention and thus they were liable for sentences under sections 148 and 149, P.P.C. which stand omitted in the impugned judgment. Since this point has not been specifically, raised by any of the parties, and as no prejudice is caused to convicts, we would not go into this point further. A minor correction however seems necessary that is the section under which the conviction has beep recorded. It ought to be section 302(b) and not section 302(a), P.P.C.

30. There being no mitigating or extenuating circumstances to award lesser sentence, their sentences are maintained. Resultantly, the appeals of the appellants are dismissed. The Reference/ Confirmation Case No.02 of 2001 is accepted and their death sentences are hereby confirmed.

31. We had dismissed the above appeals by our short order, dated 3‑9‑2002 and these are the reasons for the same. N.H.Q./A‑289/K Appeals dismissed.