P L D 1975 Peshawar 205 (PLP)

GHULAM SAFDAR SHAH, C. J.

Yaqub Shah (35) son of Bakhtawar Shah of Nauthia Jadid, Police Station West Cantt., Peshawar, was tried by Additional Sessions Judge, Peshawar under section 302, P. P. C. for the murder of Mohammad Sardar Khan and under section 13 of Arms Ordinance and was respectively sentenced to death and three years' R. I.

2. The convict has appealed to this Court. Since his death reference is also before us, we would dispose of the appeal and reference both by this judgment.

3. The machinery of prosecution was brought into motion by F. C. Taweez Gul who, at 11-30 a.m. on 20-9-1973, reported the occurrence at Police Station, West Cantt, Peshawar. The report in question was taken down by S. H. O. Hussain Ali Khan which in English, would read as follows:-- "That Taweez Gul Constable No. 837 of C. I. A. Post has produced accused Sayyed Yaqub Shah along with a country-made pistol No. 2140 in the charger of which there are three live-rounds and reported that today be had gone to Ghalla Mandi far making pur chases, that on arrival at the shop of Pordil shoe-maker, he started talking to him if he would be able to make him a pair of chappals, that in the meantime accused came from the direction of Tipu Sultan Road carrying with him a loaded pistol and no sooner he came near him than he fired five shots at the deceased who was going in front of him at a distance of 2 paces, in consequence of which he was hit and felled to the ground, that after accomplishing his design, the accused turned ,about and started funning, but he and shoe-maker Pordil pursued him and with the assistance of A. S. I. Ashiq Hussain and Saadat Mehdi Khan arrested him from the compound of Ghalla Mandi and then relieved him of his pistol" The F. I. R. ends with the narration: "that A. S. I. Hayat Ahmad, who was in civvies, had also seen the occurrence ; that the dead body was still lying on the spot and that he was not aware of any enmity between the parties nor did he know them from before."

4. Hussain Ali Khan S. H. O. (P. W. 8) has confirmed in his evidence to have recorded, at the behest of Taweez Gul, first information report Exh. P. A. in the presence of A. S. I. Ashiq Hussain, Saadat Mehdi and A. S. I. Hayat Ahmad Khan. His evidence is that after recording the F. I. R , he took into possession the criminal pistol and 3 live-rounds from its charger vide memo. Exh. P. B., sealed them into a parcel and then arrested the accuse. After completing these formalities, he proceeded to the spot and on arrival there found the dead body of Sardar Khan, and upon search of the pockets of the deceased he took into possession some papers and cash amount; prepared the usual injury-statement and inquest-report of dead body and sent it to the mortuary for post-mortem examination. He also recovered from the spot blood-stained earth, five empties of '32 bore and two spent bullets alt of which he took into possession vide memo. Exh. P. F. and put them into a sealed parcel. After these formalities, he recorded the statements of P. Ws. and then challaned the accused in the Court of Committing Magis trate to stand his trial.

5. In support of its cage, the prosecution produced in trial Court S. H. O. Ashiq Hussain (P. W. 8), Taweez Gul (P. W. 5), Saadat Mehdi (P. W. 7), Janat Gul (P. W. 2), Dr. Parvez Ahmad Khan (P. W. 4) and Aslam (P. W. 3). As against this, the accused denied his culpablity saying that he was innocent. And in answer to a question as to why he had been charged for the murder of Mohammad Sardar Khan, he replied as under :-- I am innocent and falsely charged. The deceased was the tenant of my father-in-law Fazal Rahim. He did not have good moral character and he was turned out from the house of my father-in-law. On the day of occurrence between 1 and 2 p.m. Mohd. Aslam P. W. and some police officials came to my house and took me to Police Station. I was charged on the suspicion that I have some hired assasins.

6. Now the death of Mohammad Sardar Khan by violence has not been disputed. In any case, his death has been satisfactorily established by Aslam (P. W. 3), who had identified the dead body of deceased at the mortuary, and Dr. Parvez Ahmad Khan (P. W. 4) who had, at 1-00 p.m. on 20.9-1973, conducted autopsy on the dead body and found on it the following injuries:-- (1) A firearm entry wound in the right temple region ' x ' in the skull. (2) A firearm exit wound 1" x 1" in the frontal region of the skull on the left side. Internal examination.

Scalp, skull, brain and membrane injured : contained about one ounce fluid matter ; cause of death was the brain injury as a result of fire-arm ; death was instantaneous ; and time between death and post-mortem examination was about 2-3 hours. In cross-examination, he stated that :- 'The deceased was fired from right side slightly back, and if the missile changed its course during its journey in the head, then the deceased was fired backly from the right side' . "

7. Mr. Zahurul Haq, the learned counsel for accused has, after taking us through the evidence, assailed the case of prosecution mainly on the ground that according to Firearms Expert, the crime pistol was not fired from. He; therefore, contended that the pistol in question seems to have been foisted on the accused wish a view to roping him in this case and thus none of the P. Ws. can be believed. In order to appreciate his contention, it will be proper to reproduce the opinion of Fire-arms Expert which is as follows :- "The examination of the case revealed that the five crime empties of .32 bore marked from C1 to CS and two crime bullets of .32 bore were not fired from .32 bore pistol No. 2410." Now when this bald opinion of the Fire-arms Expert was brought to our notice, we enquired from the learned Assistant Advocate-General if, in the absence of any reasons whatever to support it, it could at all be considered as an opinion? And he replied in negative saying, however, that the Court may, in the interest of justice, re-examine the Fire-arms Expert under section 428, Cr. P. C. and we agreed with him, for in his Commentary under section 45, of Evidence Act, at pages 144-145 of the Law of Evidence by Monir (1969 Edition), the learned author has expressed himself as under :- "An expert witness ought to be a witness above 'party politics' and is in fact for all parties. It is immaterial which party calls him; his clear duty is to help justice in matters depending largely upon the cogency of the reasons behind it. If not supported by any reasons the Court may reject it. The evidence of an expert has to be tested like that of any other witness, for even experts are liable to make mistakes. . . ". In pursuance of our order, Mohammad Sayyar Khan, Fire-arms Expert, who had given opinion in this case, and Bashir Ahmad, Incharge Forensic Science Laboratory, Peshawar, appeared in Court on 22-5-1975, were examined and cross-examined by learned counsel for parties in the presence of accused, who was also summoned from Jail. The evidence of Mohammad Sayyar Khan, in so far as it concerns his training and experience as Firearms Expert, is that he passed from Peshawar University M. So. Examination in 1969 and in 1971 he joined Forensic Science Laboratory, Peshawar as a trainee Firearms Expert and after a total period of three months' training, he was awarded a diploma. Explaining the background of his training, he deposed that he had studied only are chapter from the book of an author whose name he did not remember, the book on criminalistics by Ohara and the famous book by 1oajor Sir Gerald Burrard. In answer to a question, he stated that he had, since his graduation, examined 500 cases. And when asked to explain the system under which he examined the crime empties and weapons he replied as under:-- "To begin with, I prepare the test empty. Then the crime empties are compared and examined with the prepared test empty under the' Forensic comparison microscope. Then the points of similarity of vice versa are mated on the crime and test empties and on these points opinion is based. Now if the points of identification on both the sides are similar, then a composite photo micrograph is prepared but the photo micrographs are not taken." Now in the last few lines of his statement, which have been underlined* by us, the witness seems to have asserted that he prepares composite micro photograph only in a case in which the points of identification on both sides are similar. We asked him if in a case of dissimilar points he did not follow the same procedure, he replied in affirmative as under :- "I may add, however, that right from the beginning of my training, I was told by the Director of Forensic Science Laboratory not to take com posite-photographs in a case in which there are dissimilar points because of shortage of film equipment. I agree, however, that just as in the case of positive opinion, the taking of composite micro-photos would be equally necessary in the case of negative opinion. While it is true that I have never followed this procedure in any case, yet I always give in cases of negative opinion a rough sketch in pencil which, however, is not backed by any data, except my own word." It seems to us, however, that the witness was not aware that the taking of a composite-microphotograph is not only not necessary in a case in which his opinion is sought if a crime bullet has been fired from the alleged weapon, but it is said to be misleading. In this respect, reference may be made to a judgment of Supreme Court of Pakistan in the case of Mohammad Aslam v. State (1970 SCMR 450) in which the relevant dictum (at pages 458-459) is as under :- "It will be noticed from the above quotation that photographs, even in the opinion of Sir Burrard, are needed to satisfy the jury. This implies that photographs are not so essential for the investigator's own satisfaction as he obtains satisfaction and forms opinion on micro scopic comparison of the crime bullet with the test bullet. However, Sir Burrard himself at page 177 of his Book doubted about the accuracy of photographs because of distortion. He said 'For this reason it is impossible to obtain any accurate com parison of the size or position of the two objects by means of photographs : And further :

"For this reason I must confess that I have never been entirely happy in my own mind about the employment of composite photographs of fired bullets and cartridge cases as evidence of identity." The law in regard to the opinion of an Expert is contained in section 45 of Evidence Act which reads as under :- "When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting (or finger-impres sions), the opinions upon that point of persons specially skilled in such foreign law, science or art (or in questions as to identity of handwriting) (or finger-impressions) are relevant facts. Such persons are called experts." Monir has, in his Commentary on the Law of Evidence, summarized the position as under :- "The opinion of a doctor is entitled to great weight but it may be dis. carded 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 circumstances where there is no dispute as to facts or their interpretation, but it must be considered by the Court as nothing more than relevant." These observations would appear to equally apply to the opinion of a Fire-arms Expert. And in this respect, notice may be taken of two judgments of the former West Pakistan High Court from its Lahore and Karachi Benches in the cases of Ghulam Nabi v. The State (P L D 1937 Lah. 109) and Haq Nawaz v. The State (P L D 1959 Kar. 137), in which the relevant discussions are respectively as under:- "A Court is not bound to accept as gospel truth each word of what a doctor states as an opinion. In law the statement of an 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. 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 commentator on the treatise of medical jurisprudence. The state ment 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." Now from all this discussion, it would be evident that the opinion of an Expert, in order to prevail with the Court, must be backed up by reasons failing which it would have no value whatever. It is true that in Aslam's easel the Supreme Court of Pakistan did not accept the criticism of the opinion of Fire-arms Expert. But then his opinion was backed up by reasons. In the case in hand, however, Muhammad Sayyar Khan admitted before us that in support of his bald opinion (already reproduced somewhere), he had not only given no reasons whatever, but even in his own file the position was no different, as in-there too he had recorded no reasons B to support his conclusions. In this view, therefore, it is clear to us that the witness was not aware of his duties as a Fire-arms Expert, and thus hi evidence in this Court and the trial Court both would have to be dis regarded. In so far as the ocular evidence is concerned, it is overwhelming and seem' to have been rightly believed by the learned trial Judge. The principal witness Taweez Gul, who had apprehended the accused along with the crime pistol, was on gasht duty around the spot. And in this respect, the extract from daily-diary of Police-Post C. I. A. (Exh. D. A.) would appear to support him. A perusal of this document would show that on 20-9-73, he had left the Police Post at 10-15 a.m. for Sadar Bazar on gasht duty and had returned to the post at 14-05 hours on the same day. In his evidence, he has given a forthright version of the occurrence, and there is nothing in his cross-examination (except of course for trivial discrepancies which are immaterial) to becloud his credibility. In point of fact, he seems to be not only a disinterested witness but he did not even know the accused from before. The only question put to him in cross-examination was that since the deceased was the brother of S. I. Jan Muhammad0 he was evidently interested in the case of prosecution. But he denied this suggestion saying, that it was after the occurrence that he came to know that the deceased was related to Jan Muhammad Khan. The learned counsel for accused has, therefore, attempt ed to make capital out of this admission. But this would not help him. It is in evidence that S. I. Jan Muhammad was, when his brother was shot dead, posted away in another district. And thus it would be too much to suggest that Taweez Gul would falsely depose against the accused. P. Ws. Hayat Ahmad Khan and Saadat Mehdi, both of whom are police officials and were on Gasht duty together, have supported Taweez Gul. And there is nothing in their cross-examination to impugn their credibility. The fact that they were, at the time of occurrence, on Gasht duty in the same D locality is amply borne out by the copies of daily diaries of West Cantt. Police Station. And this would show that they were the natural witnesses of the occurrence. Not only this but their police statements were also recorded by the Investigating Officer, as also that they happened to have signed as witnesses the various recovery memos. Through which the Investigating Officer had taken into possession from the spot 5 crime empties, 2 spent bullets and other articles. Hussain Ali Khan S. H. O. of West Cantt. Police Station has supported the case of prosecution. His evidence is that the accused was brought to Police Station by Taweez Gul, Hayat Ahmad Khan and Saadat Mehdi; that Taweez Gul reported him the occurrence and thereafter the E accused was produced before him with the crime pistol, the barrel of which was smelling of fresh discharge and in the charger of which there were still 3 live-rounds. In his cross-examination, nothing seems to have been extracted from him so as to cast any doubt on his evidence. Now apart from the fact that in view of this overwhelming evidence against the accused, the prosecution must be said to have proved its case beyond reasonable doubt, even the recovery from the accused of the crime weapon could be taken into consideration against him as a corroborative piece of evidence, although according to Fire-arms Expert, the weapon in question was not fired from. If any authority is needed for this conclusion, it would be found in the judgment of Supreme Court of Pakistan in the case of Sharif and another v. The State (1973 S C M R 83). A perusal of this judgment would show that in that case too the alleged crime-gun was not found to have been fired from by the Fire-arms Expert. But even so, its production itself was taken to be a relevant circumstance in support of the case of prosecu tion. In his statement under section 342, Cr. P. C., the accused seems to have admitted to have known the deceased from before saying that he was the tenant of his father-in-law, but since be did not bear good moral character, his father-in-law bad turned him out of his house. Having admitted this, however, he proceeded to say that he was arrested from his own house. But in this respect, there is no evidence whatever to support him. On our part, we have not been able to appreciate this assertion of his as against the evidence of P. Ws. all of whom are disinterested. Their unanimous version is that they had apprehended him in the premises of Ghalla Mandi which is a known busy market in Peshawar Cantt. And thus it is entirely inconceivable that they would substitute his name for the actual assailant. In view of this discussion, therefore, we are entirely satisfied about the culpability of accused. And thus finding no force in his appeal, the same is rejected. As regards the death sentence awarded to him, we see no mitigating circumstances to reduce it to imprisonment for life, for the record of this' ease would show that he had killed the deceased in cold blood with premeditation. In this view, therefore, the murder reference made to us by learned trial Judge would stand confirmed. Before parting with this judgment, however, we must express our concern and dissatisfaction about the opinion of Fire-arms. Expert in this case. His evidence in Court would show that he is not aware' of the basic norms of his duties as Fire-arms Expert. And thus we would direct that a copy of this judgment would go to Home Secretary to Government, N.-W. F. P. to take notice of this situation and ensure that the Forensic Laboratory, Peshawar is I re-organized on proper lines and the experts working therein are made to realize that their opinions, in all cases referred to them by the investigating agencies, have considerable bearing upon the law-and-order-situation in the Province and therefore they must always support their opinions by proper reasons when they appear in Courts to give evidence. S. A. H. Appeal dismissed