1995 P Cr (PLP)

(l) P.W.14 Tariq Zafar, Inspector/S.H.O./Investigating Officer also appeared and made his statement. Here it may be stated that it was pointed out by the learned counsel for the appellant that Raja Munawar Hussain, D.S.P., Fayyaz Mahmood, D.S.P., C.I.A. and Raja Muhammad Farooq, D.S.P. Headquarter also investigated the case but they were neither produced by the prosecution nor any request was made on behalf of the defence to summon them as Court witnesses.

4. In this case two wads were taken into possession on 7-4-1991 from the place of occurrence. Carbine was recovered from Ghulam Asghar, co-accused.

5. During trial statements of the accused were recorded under section 342, Cr.P.C. but no defence was produced by Sheraz Asghar, even he refused to make statement under section 340, Cr.P.C. Similarly Gulfam Asghar accused declined to be examined on oath though he produced school leaving certificate, wherein his date of birth is shown is 12-2-1977 as Exh.D.C.

6. Trial Court while deciding the case acquitted Gulfam Asghar and convicted Sheraz Asghar accused under section 302, P.P.C. Sheraz Asghar was sentenced to imprisonment for life and also a fine of Rs.50,000 in default of its payment to undergo further R.I. for five years. It is also mentioned in the judgment that on the recovery of fine, the entire amount shall be paid to the legal heirs of the Wasif Rasool deceased.

7. Sheraz Asghar challenged the impugned judgment through the present Criminal Appeal No.127 of 1992. While Muhammad Arif, complainant challenged the acquittal of Gulfam Asghar co-accused through Criminal Revision No.121 of 1992. He also sought enhancement of punishment from life imprisonment to death through Criminal Revision No.122 of 1992. All these three cases are connected with each other, hence these are disposed of through this judgment.

8. I have heard the arguments of the learned counsel for the parties quite at length. Learned counsel for the appellant/convict Sheraz Asghar made the following propositions for the consideration to acquit the appellant:-- (i) He stated that there is delay in lodging the F.I.R. The distance between place of occurrence and the police station is only nine miles, which could be covered within a few minutes on Suzuki. This delay occurred in fabricating the story. (ii) According to him, name of Muzaffar Hussain P.W. does not find mention in the F.I.R., that he arrived at the place of occurrence alongwith the trolley. (iii) As per contents of F.I.R. both the accused came armed with pistols, openly passed by the P.Ws. in the same lane, after covering some distance they fired in the presence of eye-witnesses, but strangely there was no shouting etc., which is quite abnormal on the part of father and those who accompanied him. Muhammad Arif P.W.8 is the father of the deceased while Ahsan Mahmood is closely related. (iv) The complainant stated in the F.I.R. that the appellant fired hunt with pistol, it means that there was no bullet shot or fire of .12 bore carbine, which is in conflict with the medico-legal evidence. Later on, this version of burst was changed to that of firing from carbine, which shows that the witnesses made crude improvement in the statements to bring their evidence in line with the medico-legal evidence. This improvement falsifies the witnesses: (v) There is no mention in the F.I.R. that other co-accused Gulfam Asghar also fired at the time of incident but later on there is a change. A fire in the air has also been attributed to him. (vi) The complainant categorically stated in the F.I.R. that deceased died at the spot. His dead body was taken in Suzuki to the hospital but later on he took the somersault by saying that Wasif Rasool did not die at the spot after receiving fire shot. P.W.8 Muhammad Arif stated that there is long standing enmity between the parties pertaining to criminal and civil litigation, which is a compelling circumstance to believe that he had motive to falsely implicate the accused in this case. As per version of the prosecution, the distance between the place of firing and the deceased is only five feet but no blackening was seen around the injury.

9. Learned counsel contends that during investigation Sheraz Asghar has been found innocent while Gulfam Asghar is real culprit.

10. About P.W.11 Muzaffar Hussain eye-witness, learned counsel argues that he is a chance witness; does not live in the village where occurrence took place and has no business to be present there. He has pointed out certain other contradictions falsifying his presence at the place of occurrence with trolley in front of Sabir Hussain Qureshi's house. He agitates that this witness cannot be present at the place of occurrence as he has not signed any document on the first day prepared/written by the police. Lastly; he stated that there is a contradiction with regard to writing of statements under section 161, Cr.P.C. either by Bashir Ahmad S.I. and Ata Muhammad A.S.I. Learned counsel is of the view that principle of "falsus in uno, falsus in omnibus" is applicable. Both these witnesses have been disbelieved by the trial Court qua the co-accused. These statements cannot be relied upon for upholding the conviction of the present appellant.

11. The prosecution produced. evidence showing that the appellant obtained short-leave from his office. To that effect, statements of P.W.3 and P.W.4 had been brought on record. He maintains that this piece of evidence gains no support to the prosecution case because the plea of alibi has not been taken by the convict. While concluding his arguments, he submits that it is safe to say that the incident of murder has not been witnessed by anyone. P.W.8, father of the deceased and other P.Ws. concocted the story to implicate the accused falsely. The prosecution case falls for the reason that P.W.8 having long standing enmity with the accused does not get support from any independent corroboratory evidence.

12. As far as the evidence of Muzaffar Hussain is concerned, though he is not related to the deceased yet he is a chance witness because his name does not occur in the document recorded or prepared by the Investigating Agency just after the occurrence. Medical evidence lends no support to connect the accused with the crime. The investigation of the case has been carried out by number of Police Officers, the result whereof damages the prosecution case. Thus, he seeks acquittal and relies upon the following judgments in support of contentions raised above:-- PLD 1985 SC 11, 1971 PCr.LJ 944, PLD 1989 SC 440, PLD 1985 Lah. 345, PLJ 1981 Lah. 429 (sic), PLD 1963 Kar. 805 and 1969 SCMR

584. I perused the above-quoted judgments. No denial to the principles enunciated by the respected Courts but not applicable in the present case because of the facts and. circumstances being different to those mentioned in these judgments.

13. On the other hand, learned State counsel Raja Muhammad Ayub Kiani, assisted by Khawaja Muhammad Fayyaz, Advocate, vehemently opposed the appeal and prayed for maintaining the judgment of conviction on the following grounds:-- "That Muhammad Arif P.W.8, father of the deceased is natural witness in the given circumstances. It is expected of him to be there as father is likely to go for assisting his son in bringing the wooden battens to home, which were being brought by the deceased on tractor. Gulfam Asghar accused is a student whereas the convict is of grown-up age. Hence, there are reasonable grounds to believe that the accused had committed the offence as alleged by the prosecution."

14. The motive alleged by the 'prosecution that the accused party suspected illicit relation with Mst. Shaheen, who died one year ago, is plausible, in village society. People do take such affairs seriously for a lung period. Lastly, the learned counsel for the prosecution states that statement of Muhammad Asif is fully corroborated by an independent witness, P.W.11 Muzaffar Hussain. His name is mentioned in the F.I.R. as one of the witnesses, besides the statement of Asjad Rauf P.W9, who brought the tractor-trolley and unloaded the wood at the place of occurrence and went away. Had the prosecution made some ill-motivated efforts they would have brought some other independent witness. It was possible for them to bring on record the statement of P.W.9 with a narration that he also saw the occurrence of murder but it had not been done so. PLD 1974 SC 65 relied upon regarding non-recovery of blood-stained earth from the place of occurrence. ??????????

15. Learned counsel for the complainant has stated that the contradictions/improvements allegedly occurred in the prosecution case/evidence are quite minor and cannot be given any importance keeping in view the main features of the case. With the aforesaid arguments, he prayed that appeal be rejected and sentence awarded to the appellant Sheraz Asghar be maintained. It is appropriate to mention here that none from the sides made any submission about the fate of the criminal revisions taken up alongwith the appeal.

16. I have heard the learned counsel for the parties, perused the record thoroughly, keeping in view the points for and against raised by the learned counsel for the parties. In my opinion, the prosecution has mainly relied upon the following nature of evidence:-- (a) Ocular evidence; (b) Medical evidence; and (c) Motive.

17. Perusal of F.I.R. Exh.P.E. reveals that Gulfam Asghar neither fired at the deceased nor in any other manner. It has been alleged by P.W.8 that Gulfam Asghar accused had a carbine and fired in the air while running away from the place of occurrence. Same is the version of P.W.11. Thus, there is material contradiction and improvement in the case set up originally by the complainant implicating Gulfam Asghar accused. These contradictory statements are sufficient to say that acquittal of Gulfam ordered by the learned Sessions Judge does not deserve any interference by this Court. As regards Sheraz Asghar, the ocular evidence produced by the prosecution needs thorough examination for dispensation of justice. The view that the eye?witnesses having been disbelieved qua co-accused are not worthy of credence against Sheraz Asghar accused would be of no legal force. The principle of "falsus in uno, falsus in omnibus: (false in one, false in all) is not of universal application. Principally, chaff from grain is to be separated for the ends of justice. The occurrence took place during daytime on 7-4-1991. The F.I.R. was lodged at 2-15 p.m. There is nothing on record/evidence to suggest that any deliberations and consultations took place prior to lodging of the F.I.R. The circumstances show that the F.I.R. was lodged with promptitude.

18. Muhammad Arif, complainant, is undoubtedly father of the deceased. He has a strong corroboratory support from the statement of P.W.11, Muzaffar Hussain. This witness, Muzaffar Hussain, is mentioned in the F.I.R. He is not related to either side. He has no enmity with the accused. He was present with Wasif Rasool at the place of occurrence. His narrated story compels me to say that his evidence has the ring of truth. Further, supporting evidence is of Asjad Rauf P.W.9, who brought timber and earth on trolley driven by him. He stated that timber etc. were unloaded at some distance from the place of occurrence. In the light of statements of these witnesses, Muhammad Arif, Muzaffar Hussain and Asjad Rauf, there is no scope to say that Muzaffar Hussain P.W. was not an eye-witness. The presence of Muzaffar Hussain at the place of occurrence witnessing the commission of crime coupled with the statement of Muhammad Arif the evidence cannot be discarded on the ground of friend/close relationship. Taking away wooden battens on shoulders by the P.Ws. is also a factor to believe that the complainant's house is situated nearby the place of occurrence, which speaks of this witness being natural witness of the occurrence. The edifice of prosecution story built by the P.Ws. shines with the strength of truth especially with the aid of corroboratory statements brought on record through the statements of Muzaffar Hussain P.W.11 and of others involving Sheraz Asghar as accused who fired at the deceased and committed murder.

19. The medical evidence in no manner goes counter to the statements of the eye-witnesses. A wound of burst, later on named carbine shot is not sufficient to doubt the evidence. Non-recovery of blood-stained earth from the site is not surprising phenomena. The deceased after receiving fire shot at his back fell down on the ground. The deceased had an abrasion on the left knee which is the result of fall with face downward. Thus, there is every possibility that the blood might not have fallen on the ground. The post-mortem report lends support to the prosecution case regarding time of occurrence, number of injuries and the site of the injuries on the person of deceased.

20. The finding of the trial Court about motive for crime is that it has not been established. The story of motive does find mention in the F.I.R. Discarding of motive alleged by the prosecution, even if it stands accepted, as observed by the trial Court, shall not mar the conviction to acquittal. It is sufficient to say that it may not be a cause for enhancement of sentence from life imprisonment to death. Sheraz Asghar proceeded on short leave from the Central Ordnance Depot, stands fully proved. He went away from his duty out side the Ordnance Depot. If this fact is considered in juxtaposition with the other circumstances of the case, this piece of evidence has bearing on the veracity of the prosecution version as the timings coincide with the incident. Learned defence counsel states that Sheraz Asghar was declared innocent and his plea of defence was accepted during the investigation. Surprisingly he restrained himself to put forward the plea of alibi during trial. He did not like to bring on record any evidence to prove that who was Fazal Elahi, where he lived, what connection he had with him, when he died and whether he went there on that day or not, to offer condolence. This omission does reflect adversely upon the conduct of the appellant as he had a finding of innocence in his favour during investigation on the plea of alibi which allegedly proceeded on the aforesaid story narrated by him during investigation before the Investigating Officers.

21. While concluding the discussion, it may be pointed out that it has become routine with the Police Department to order for the repeated investigations to be carried out by different police officials. I am conscious of the legal position that there is no bar to order for number of investigations but by this process, one after the other, number of Investigating Officers are detailed to carry out investigation whereby quite different and conflicting findings come on the record. It spoils either the case of the prosecution or that of the defence in a manner which is against the interest of justice. The frequent changes of investigation pave way-for corruption and exercise of undue influence with a view to achieve the desired objective by an influential party. For this end both the parties do put in all efforts mostly in a clandestine manner. This type of practice has brought in corruption which is highly deplorable and is, therefore, deprecated. The tendency needs 'curbing and the only course for it is to direct the Senior Police' Officers to restrain from transferring the investigation from one Investigating Officer to the other and then to many. Sparingly but with utmost care and caution, the investigation of the case may be transferred but not in the manner it is being done. In case the conflicting findings come out, the Senior Police Officer must record his own observation as to why the conflicting findings have been recorded and on what material/evidence so that the aggrieved party is saved from unjust conclusion arrived at by different Investigating Officers.

22. The upshot of the above discussion is that Sheraz Asghar accused has rightly been sentenced by the trial Court. His appeal is dismissed. The other two criminal revisions since not pressed, are also dismissed. N.H.Q./S-700/L ??????????? Appeal dismissed.