ABDUL HAYEE KURESHI, J.-The two appellants Manzoor and Gul were tried by the IInd Additional Sessions Judge. Khairour, on charees under sections 302/34, P. P. C. And 307/34, P. P. C. Appellant Manzoor was found guilty under section 302, P P. C. And sentenced to imprisonment for life and to pay a fine of Rs. 2,000 (in default R. I. For one year). Appellant Gul was, however, found guilty under sections 325 and 323, P. P. C. And on the first count was sentenced to R. I. For four years and to pay a fine of Rs. 1,000 (in default R. I. For six months). However, no sentence was passed in regard to the offence under section 323, P. P. C. As according to the Additional Sessions Judge this appellant bad remained in Jail for a year. Appellant Manzoor was separately tried and convicted for an offence under section 13-E of -the Arms Ordinance and sentenced R. I. For 12 months. Both the appellants have filed an appeal against the judgment and respective sentence imposed on them under sections 302 and 325, P. P. C. And such appeal has been numbered as Criminal Appeal No. 261 of 1976. Appellant Manzoor has filed a separate appeal challenging his conviction and sentence under section 13-E of the Arms Ordinance.
2. We have heard Mr. Mohammad Hayat Junejo, learned counsel for the appellants in both the appeals. We have also heard Mr. Abdul Karim Lakhan, who has appeared for the State in these cases. Since common questions of fact and law arise in these appeals we purpose to dispose of the same by a single judgment.
3. Appellant Manzoor is an uncle of appellant Gul. The deceased Mohammad Ameen was a cousin of appellant Manzoor. Complainant Azizullah and P. W. Mohammad Malook are brothers of the deceased while P. W. Nazeer is the son of the wife's brother of the deceased. Besides being closely related, the complainant party and Manzoor appellant live in the same village while appellant Gul lives at a short distance.
4. The incident in this case occurred on 14-8-1975 at a place in or near village Banoo in Khairpur Mirs taluka. On that day at about 10 a.m. Complainant Azizullah was sitting in his house with P. W.
Nazeer Ahmad when appellant Manzoor passed by his house. As the women-folk of the family of complainant Azizullah were taking bath in the courtyard of their house Manzoor was prevented from proceeding further and it seems to be clear on the record that Manzoor despite relationship was considered by the complainant to be a man of bad character and therefore he had restrained him from passing by the house of the complainant party. However, when on the day of incident Manzoor was prevented by complainant there was some verbal altercation and Manzoor then went to his house, which is stated to be at a distance of 120 paces from the house of the complainant and brought a gun and started abusing the complainant upon which deceased Mohammad Ameen prevented him on which the appellant Manzoor fired at the deceased causing his death. Appellant Gul vas also armed with a hatchet at the time of incident. At that time P. W.
Malook had also arrived there and shouted at appellant Manzoor and caught hold of his gun upon which appellant Gul gave a hatchet blow to Malook who also fell down.
5. Within an hour and fifteen minutes complainant Azizullah reached Khairpur Police Station, which is at a distance of four miles from the scene and lodged the first information report which are recovered by S. H. O. Rashid Ahmad. The Police Officer then came to the scene of occurrence and inspected the same in presence of P. W. Ilahi Bux. The co-mashir was Lai Bux who has not been examined. The Police Officer prepared mashirnamas of the injuries on the deceased as well as on Malook and he also collected the blood-stained earth and seized the empty cartridge which was lying on the scene. Dead body of Mohammad Ameen was sent for post-mortem examination and injured Mohammad Malook was also sent to hospital for treatment. On that very day the same Police Officer alengwith the same mashirs went to the house of appellant Manzoor and arrested him whereafter Manzoor led the Police Officer and the mashirs to his house and produced a single- barrel gun from under his bed on a cot. A bandolier containing 8 live cartrides and one empty cartridge were also produced by appellant Manzoor and seized by the Police Officer. Clearly this empty cartridge was not relevant to the case as the crime empty was -secured from the scene.
Thereafter the same Police Officer along with the same mashirs went to the house of appellant Gul who also after his arrest led the Police Officer to his house and picked out a blood-stained hatchet from the rafter of his shed. Both the crime gun and empty secured from the scene were sent to the Forensic Science Laboratory at Karachi and positive report was given to the effect that the empty cartridge secured from the scene had been fired from the gun produced by appellant Manzoor..
Similarly the hatched recovered from and at the instance of appellant Gul was sent to the Chemical Examiner, who was given a report to the effect that it was stained with human blood.
After the usual investigation the two appellants were sent up to stand trial, which has resulted in the convictions and sentence as aforesaid.
6. The prosecution examined complainant Azizullah as well as eye--witnesses Nazeer and Maiook.
The prosecution also examined mashir Ilabi Bux who has deposed to the recoveries and inspection memo. Etc. The report of the Chemical Examiner and the Ballistic Expert have been produced by S. H. O. Rashid Abmad. Dr. Mushtaq Ahmad has been examined in respect of the injuries on the person of deceased and P. W. Mohammad Malook. The prosecution also examined Lai Bux, the Tapedar, who had prepared the sketch of the scene of offence after about eleven months of the incident. It would thus appear that the prosecution evidence consisted of the three eye-witnesses and recoveries of the crime weapons and the empty cartridge secured from the scene of offence.
7. While the two appellants have examined no witness in their defence, they have denied the prosecution case. Appellant Manzoor has further stated that the witnesses being interrelated were interested and biased. He went on to state that while he was standing in the paddy field P. W.
Mohammad Malook who had a gun, attacked him for the reason of suspicion that the appellant was on terms of illicit intimacy with Mst. Gori. He further stated that deceased Mohammad Ameen tried to follow him and while prosecution witness Malook aimed the gun at him (the appellant) the shot hit deceased Ameen. He stated that his mother had made an application to the Superintendent of Police presumably meaning thereby that his mother had given the version of the appellant in such application. However, the application in original or a copy thereof has not been placed on the record. The statement of appellant Gul was one of absolute denial and he stated that he had been falsely implicated in the case because he was a private servant of appellant Manzoor.
8. On the facts of this case it is first of all necessary to examine the evidence of the three eye- witnesses, namely complainant Azizullah, P. Ws. Nazeer and Malook. These three witnesses are admittedly related Inter se but they are also closely related to the appellants. In fact they also reside in the same village and bear the same sub-caste. It has, however, come on the record of the case that appellant Manzoo was a person of questionable character and had therefore been restrain by complainant Azizullah from passing by his house. Then it has been brought out in cross- examination of complainant Azizullah that a cousin of the wife of P. W. Malook had some litigation with appellant Manzoor and some cases were pending in the Courts. The nature of litigation and the interest of P. W. Malook has not be specified. It has also been suggested in cross-examination that the prosecution witnesses had suspected appellant Manzoor to be a "Kayo" with Gori but the relationship of Mst. Gori with any of the eye-witnesses has been denied. Random suggestions have b; en made in cross-examination to substantiate the enmity of the witnesses with the appellants but these sugges--tions have been repelled and not substantiated by the appellants. However Mr. Mohammad Hayat Junejo attempted to persuade us to arrive at a conclusion that these witnesses were inimical and interested and therefore their evidence should not be relied on without corroboration. We have given our anxious consideration to the evidence of these witnesses and we have no doubt that they could not be termed as interested witnesses who were deposing against the appellants on account of enmity or for an existing grudge of a magnitude that would normally persuade a person to implicate others falsely. It must not be overlooked that even the appellants are related to the deceased and the witnesses and appellant Manzoor admits his presence. The only cause of grievance that the witnesses and against appellant Manzoor was that he being a person of questionable character and was prevented from coming near the houses of the witnesses. This grievance in oar view would not make the witnesses interested or inimical to the appellant Manzoor although the latter might seek to avenge the insult. Moreover all eye-witnesses were closely related to him. Gul is again a cousin's son of Manzoor.
9. In regard to the incident itself the version given by appellant Manzoor in his statement under section 342, Cr. P. C. In ridiculous. Even the learned Advocate for the appellants found difficult to support such aversion in the absence of any corroborative circumstances or foundation in evidence. The incident had taken place in the manner in which the pro--secution witnesses have deposed. It was but natural on the part of the complainant to restrain appellant Manzoor from passing by his house when the women-folk was taking bath in the courtyard. It is common knowledge that persons feel be-littled when they are prevented from passing by the house of another person. It appears that appellant Manzoor could not easily pocket such an insult and he thereafter went to his house which is at a distance of 120 paces and brought out an unlicensed gun. Immediately on his coming back he started abusing the complainant which invited a protest from deceased Mohammad Ameen and appellant Manzoor fired at him causing his death.
Mohammad Malook, who was returning from village Thehri, saw appellant Manzoor and deceased Mohammad Ameen talking together. He has further deposed that deceased Mohammad Ameen was protesting and Manzoor was abusing him, and then the former was shot dead by the appellant Manzoor. As Mohammad Malook proceeded further appellant Manzoor levelled his gun at him but in the meantime appellant Gul gave him a hatchet blow on the left eye-brow. The version given by P. W. Nazeer is also substantially similar. The learned Advocate for the appellants has however, pointed out some discrepancies and con--tradictions of a very minor nature in the description of the incident. To such extent it must be stated thatnone of such discrepancies and con--tradictions is of a nature or magnitude as might suffice to rob the testimony of eye- witnesses of its probative force. As an example complainant Azizullah bad stated that deceased Mohammad Ameen was standing in the courtyard when he stopped Manzoor from abusing, whereas Nazeer has stated thatthe incident took place in the Khajoor Garden of Azizullah. For ought we know the house may be in the garden. Again P. W. Malook had stated that complainant Azizullah and P. W. Nazeer were running when appellant Manzoor levelled the gun at him. The other two witnesses, however, not stated so. As stated above, contradictions of this nature very often creep into the record for variety of reasons which may be the time that elapsed between the occurrence and examination in Court, the powers of observation varying from person to person and the memory for retaining impressions of an incident as between one person and another.
However, there is no reason to believe that the incident of murder did take place at the time and in the circumstances on which all the three eye-witnesses are unanimous. The mere fact of discrepancy in denoting the exact place where the deceased fell down or the place, where the appellants were at the time of causing injuries is otherwise not of much significance unless it can be shown that the place of occurrence has been substantially altered by the prosecution wit-- nesses to suit a story which is false This is not a case where the scene of occurrence has been shifted by the prosecution witnesses either by removal of the dead body from one place to another or by planting of blood at a place different from the one where the incident occurred, To that extent the case would be discussed further but there is nothing to indicate that the three eye-witnesses have shifted the scene of occurrence from one place to another. In cross-examination several suggestions have been made in regard to the scene of occurrence being different from the one which is bang deposed to by each one of the witnesses but substantially every one of the witnesses states that incident tonk place at or near the house of the deceased. Such version is corroborated by the evidence of S. H. O. Rashid Ahmad and masher Ilahi Bux.
10. Mr. Mohammad Hayat Junejo with his usual industry has invited our attention to the mashtrnama of scene of occurrence as well as the sketch prepared by Tapedar Lai Bux for the purpose of substantiating that the incident bad taken place near the house of appellant Manzoor and the learned Advocate on such premises urged that this circumstance indicates a right of private defence in favour of the appellant Manzoor, to which benefit he is entitled. It must be stated straightway that the copy of the sketch (Exh. 11-A) in the Paper Book is materially different from the original. Several points in the original sketch have been described and such description finds no place in the copy of the sketch as appears in the Paper Book. The original sketch shows 'A' as the point where deceased Mohammad Ameen fell down after receiving the gunshot injury while point 'B' which is situated at 21 feet on the North East of point A is the Autaq of deceased. The house of deceased is again on the Eastern side of point 'A' at a distance of 187 feet. The house of appellant Manzoor is shown a point "D" and the same is at a distance of 123 feet from point 'A'. The most significant aspect of the case as emerging from the original sketch is that from the nearest point of Autaq of deceased, the place where the deceased fell down is 21 feet. In juxtaposition the .Evidence of S. H. O. Rashid Ahmad is relevant. He was the witness who reached the scene of occurrence within a very short time of the incident. He bad prepared the mashirnama in which the distances between the various relevant places have been shown. He has stated in evidence that the place of occurrence was 40 paces from the house of appellant Manzoor and 80 paces from the house of complainant Azizullah. In regard to the Autaq of the deceased the mashirnama of the scene of offence and the evidence of the Police Officer is silent. MashIr Ilahi Bux has, however, stated that the house of appellant Manzoor was about 80 paces rom the scene although when he was cross- examined he had stated that the house of Manzoor was at a distance of 40 paces from the scene of occurrence and the house of the complainant was at a distance of 80 paces.
11. It would thus seem that there is some controversy. In regard to the respective distance as between the house of appellant and the complainant from the scene of occurrence. Mr. Mohammad Hayat Junejo has strenuously urged before us that since the complainant party had traversed a distance of 80 paces from their house, which is at a distance of 40 paces from the house of appellant Maozoor, it would appear that the complainant party was aggressor and if appellant Manzoor had fired he had done so in exercise of right of private defence. In conjunction the learned Advocate has urged that appellant Manzoor had not come a second time with the gun as was stated by the witnesses. In such context he has relied on the evidence of Mohammad Molook who had stated that he was on his way back to his house when the actual shot was fired. It may as such be possible to infer that Mohammad Malook either did not see or did not care to notice the first verbal alteration which took place when appellant Manzoor had been pro--hibited from coming towards the house of complainant, although he has stated that he heard the deceased and appellant Manzoor exchanging words.
12. For the purpose of argument let it be assumed that the place where the deceased fell down was nearer the house of appellant Manzoor. Even on such assumption one could at best say that after the initial protest of the complainant at appellant Manzoor coming towards his house, the com-- plainant may have chased appellant Manzoor back towards his house. It is not uncommon that when two persons get engaged in verbal altercation they also move from the initial places nor is it uncommon that a person preventing another from coming near his house would follow the other person to some distance. It may well be that the complainant and the deceased may have chased appellant Manzoor to a distance of 80 paces from their house but it is the case of no on that at that time appellant Manzoor was armed with a gun. Even if someone were to say so the version would in all probability have to be rejected because unarmed witnesses would not normally chase a person who was armed with a gun. It, therefore, seems that the complainant and the deceased had followed the appellant to a distance of 80 paces from their house or 21 feet from the Autaq of the deceased. It is after this short chase that Manzoor went inside his house and brought a gun.
13. During the arguments the learned Advocate for the appellants urged that it would not be open to the Court to reconstruct the prosecution case--- We are afraid we cannot accept such a proposition, for a Court while deciding criminal case on ocular testimony has to arrive at its conclusion on the evidence available. It is well known that the witnesses on account of failing memory or by reason of lapse of time give a slightly altered version in the Court but in such cases it is the duty of the Court to draw its conclusion by its own inference when the same proceed upon evidence and established circumstances of the case. In the case of Syed Ali Bepar v. Nibaran Mollah (PLD1962SC502) their Lordships of the Supreme Court was dealing with a case in which right of private defence has been pleaded. In that case in spite of the Supreme Court coming to the conclusion that "no satisfactory evidence" was available to indicate the manner in which the incident had occurred theSupreme Court reconstructed the prosecution story and while justifying such an approach in the case, Fazle Akbar, J. Stated as follows :----- "Here we may observe that in a case of this type the part is do not generally come out with the true story. It is a normal incident of an "adversary proceedings" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances."
The learned counsel for the appellants has, however, relied upon the case of Bhalu v. Crown (PLD 1955 FC 432) and the case of Muhammad Akhtar v. The State (PLD 1957 SC (Pak.) 297) to enunciate that such a course of appreciation of evidence is not available to the Appellate Court.
The second case is completely irrelevant to the discussion involved in the present appeal. In that case the High Court had disbelieved the incident because the number of accused had been inflated so as to rope in as many members of the family of the accused as possible. The Supreme Court in that case had acquitted the appellant as there were no confimatory circumstances. In the case of Bhalu and others, the High Court had disbelieved the evidence of prosecution witnesses "on the main parts of the incident" and therefore the appellants were acquitted. We are in respectful agreement with the propositions and principles laid down by the Supreme Court but in the instant case we are neither disbelieving the witnesses nor do we state that the incident itself did not occur in the manner in which the prosecution witnesses stated that it occurred. The only discrepancies are in regard to the actual place where the deceased fell down and the, controversy is whether he fell down near the house of complainant or at a distance of 80 paces from there. This, by no means, affects the merits of the prosecution evidence.
14. The learned Advocate for the appellants, however, urged that if it is believed that the complainant party chased the appellant, the latter had the right of private defence. We are afraid we cannot agree with such a submission for the simple reason that the chase had taken place after a verbal altercation when both the parties were unarmed and it was thereafter that appellant Manzoor had gone to his house and brought a gun and appellant Gul had come, with a hatchet.
The gun was used on an unarmed person and patently he appellants had no injuries on their person nor did the--y have any apprehension from the complainant and the deceased. The right of private defence is therefore not available to the appellant. Such a situation might entitle one to the lesser sentence which appellant Manzoor has incurred.
15. Summing up the prosecution evidence it is clear that the deceased died on account of gunshot injury inflicted by appellant Manzoor. This appellant has admitted his, presence at the scene of occurrence although be has falsely stated that Malook had fired at the appellant which hit the deceased. The presence of P. W. Malook is not at all open to question because he had received injuries and therefore reliance can be safely placed on his evidence. He however had no gun.
16. Having considered the ocular testimony we proceed to consider other evidence against the two appellants. As stated above, on the day of incident appellant Manzoor lead S. H. O. Rasheed Ahmad and mashir Illahi Bux to his house and produced an unlicensed gun together with a bandolier containing cartridges. An empty cartridge had been found from the scene of occurrence. The crime weapon and the crime empty were sent by the Investigating Officer to the Forensic Science Laboratory on 30-9-1975 and a report was received from that laboratory stating that the crime empty had been fired from the crime weapon. This report has been placed on record as Exh. 8-J through the Investigating Officer but the report contains no reasons for opinion nor was the Ballistic Expert examined. It seems that after the amendment of the Code of Criminal Procedure by the Law Reforms Ordinance, 1972, the reports of handwriting expert, chemical analyser or assistant chemical analyser to Government or the reports of any serologist, fingerprint expert or fire-arm expert appointed by the Government, would without calling such expert as a witness be used as evidence in any enquiry or trial. No doubt by the amendment a power was reserved for the Court to summon and examine a person on its own motion or at the request of any party. The law as it stood originally did not contain a provision in regard to the reception of the report of the fire-arm expert without obliging the prosecution to produce such expert in Court. There is no doubt that the amendment in section 510, Cr. P. C. Is a provision of convenience but in our view this amendment does not relieve the prosecution of its duty to support the opinion of the ballistic expert by reasons for such opinion and if circumstances so require production of the expert for cross-examination. All that the amendment provides is for reception of the report but in regard to the rules governing the credibility or value of the opinion section 510, Cr. P. C. As amended ,does not make any departure from the existing state of law. The report of the ballistic expert is after all an opinion which is never binding on the Court and can never be consi--dered to be infallible. Howsoever high the status of the expert, his evidence is after all an opinion which for being acted upon requires scrutiny by the Court. It is this aspect which makes a difference between a fact and an C opinion. While a fact is something cognizable by the senses, such as sight or hearing an opinion is manifestation of a mental exercise undertaken by a person with all the weaknesses to which a human-being is subject. Whether such opinion is correct and should be acted upon is entirely within the domain of the Court. Section 46 of the Evidence Act clearly provide: that when opinion of experts are relevant; the facts which may support on negative such an opinion are relevant, find so also the facts which are inconsistent with the opinions. An opinion 'is receivable as evidence because it confirms or contradicts or explains the other evidence available before Court. Such being the case, it cannot but be said that an opinion which is not supported by reasons, can hardly carry any weight, much less persuade a Court to act on the assumption that the opinion must be correct. On such aspect of the case a Division Bench of the Allahabad High Court in the case of Mst. Gajrani and another v.
The Emperor (A I .R 1933 All. 39-4) even ,while dealing with the evidence of a chemical examiner, which evidence is more reliable and exact because Analytical Chemistry is more or less a perfect science, expressed that grounds on which the opinion of a chemical examiner is based must be stated and it is not enough if the expert merely states his opinion. It would be profitable to reproduce a passage from this judgment:- "In India the Chemical Examiner merely, tenders a report and he does not appear and give evidence. It is extremely desirable that his report should be full and complete and take the place of evidence which he would give if be were called to Court as a witness."
The same principle has also been stated by another Division Bench of the same High Court in the case of Happu v. Emperor (AIR 1933 All. 83). In the case of Behram Shehriar Irani v. Emperor (AIR 1944 Bom. 321) the scope and object of section 510, Cr. P. C. Was examined by a Division Bench of M: J. Wadia and Weston, JJ. And the learned Judges expressed themselves as under :-- "It is obvious however that the weight to be attached to such a report must depend to a considerable extent on the reasons which the Chemical Analyser gives for the conclusion which he has arrived at, and in some cases, as in the one before us, where the matter to be reported on is the presence of certain substances in the article submitted for examination, much would turn on the quantity of the incriminating substance found in the article. If the Chemical Analyser's report alone is to be considered sufficient, it should contain all the information which that Officer himself would have been able to furnish if he had been examined as a witness."
There is a mass of case-law on the point that reasons for opinion of an expect become necessary but most of these cases relate to evidence of Chemical Examiner but there appears to be no reason why reason of the Ballistic Expert should be dispensed with if reasons of a Chemical Examiner are necessary. On the contrary there is a greater necessity for obtaining the reasons of a Ballistic Expert in support of the opinion because such opinion is based only on personal impression and observation. On the other hand, the evidence of Chemical Examiner is based on methodical and scientific examination of some objects and the chances of incorrect opinion in such cases are slender and remote.
17. Since the trial Court did not obtain the reasons for the opinion of the Ballistic Expert, we thought that it would be desirable to obtain the reasons in this Court. We found that the opinion had been tendered by one M. Ahmad and we wanted to summon him as a witness but D. S. P. Ghulam Abbas Jafri appeared in our Court and he made a statement on oath that M. Ahmad whose full name is Mukhtar Ahmad was a Sub-Inspector of Police, who had retired in February, 1977 and his whereabouts were not known, D. S. P. Ghulam Abbas Jafri placed all the papers up and we found that reasons for the opinion were available but we were told that the same had been signed not by S. I. P. Mukhtar Ahmad but by A. S. I. Maula Dad. Confusion got more confounded because even the reasons for the opinion were not signed by the person who recorded the opinion. We were, however, told that Maula Dad had examined the crime objects under the supervision of S. I. P.
Mukhtar Ahmed but we were disinclined to make any further attempt to obtain the evidence of A. S. I. Maula Dad in this regard. D. S. P. Ghulam Abbas Jafri had told us that a single micro-composite photograph of the crime empty and the last cartridge had been prepared although five empties bad been used for the purpose of tendering the opinion. No photograph in regard to the remaining four empties was prepared and in fact these four empties were not even sent to the trial Court. For all such reasons we are constrained to keep the opinion of the Ballistic Expert out of consideration.
It is indeed deplorable that a case of murder should have been treated with such laxity by the Forensic Science Laboratory as well as trial Court. It was patently the duty of the Forensic Science Laboratory to forward together with the opinion the reasons for the same it was again the duty of the trial Court to examine the Ballistic Expert in Court unless it had the profound knowledge of testing the correctness of the opinion in order to judge the veracity and correctness thereof. Be that as it may, the opinion of the Ballistic Expert in this case is ruled out of consideration.
18. However, still the conduct of appellant Manzoor is relevant inasmuch as he led the Police Officer and mashir to his house and produced a gun when one empty of the gun had been recovered from the scene of offence.
19. In regard to appellant Gul the evidence of the same Police Officer and mashir establishes the recovery of a blood-stained hatchet from him and such hatchet has been certified by the Chemical Examiner to be stained with human blood. As- stated above, the evidence of Chemical Analyser is not subject to the same infirmities and weaknesses as the evidence of Ballistic Expert for the reasons that it proceeds upon a definite data and a scientific process. The recovery of hatchet from appellant Gul is corrobora--tive of the ocular testimony.
20. While dealing with the evidence of corroboration emanating from recoveries one must not overlook the fact that the mashir of recovery I admittedly related to the complainant and deceased. He is by such rela--tionship related even to the appellants. The alacrity of independent persons E who volunteer as witnesses in the Province of Sind is well known and if mashir Illahi Bux is related to parties that factor by itself is not devoid of evidentiary value, in absence of other circumstances indicating that he was a false witness.
21. For all the above reasons we have come to the conclusion that the evidence of eye-witnesses is by itself sufficient for maintaining the conviction and sentence of both the appellants on each count in each case. We do so accordingly and dismiss both the appeals.