This is an appeal under section 410, Cr. P. C. By Raees Ahmad against the conviction recorded by VthAdditional Sessions Judge, Karachi on 13-2-1978 under section 307, P. P. C. Sentencing the appellant to suffer R. I. For 7 years and pay a fine of Rs. 2,000 in default to undergo a further R. I. Of 6 months with a direction that half of the amount of fine if realised will be paid to injured Mohammad Swaleheen.
2. The facts of the case are that F. I. R. No. 401/1975 Exh. 18 was registered at Golimar Police Station on 6-11-75 at 11-30 p.m. By the complainant Mohammad Swaleheen P. W. 1, to the effect that on that day at about 9 p.m. The complainant closed his shop and along with his father Abdul Karim, servant Piarey Khan and two sons Abdul Naeem and Abdul Azeem set off for his house in his car. He dropped his servant Piarey Khan in Liaquatabad and thereafter, proceeded towards Nazimabad, when the car reached opposite Blue Heaven Hotel near first Chowrangi at about 9-15 p.m. a Taxi coming from behind his car hit the side of his car upon which the complainant remonstrated with the driver of the Taxi. The car stopped ahead and accused Races Ahmed who was sitting in the Taxi told the complainant that the accused had been looking for the complainant. Saying so the accused got down from the taxi and fired thrice at the complainant. One bullet hit him on the right side of chest near shoulder and the other hit him on his wrist and third one on his back. He fell down and raised cries. His father and children also raised cries. Many people collected there, but accused Races was able to make good his escape. His father stopped a Taxi and brought him to the Civil Hospital. This statement of the complainant had been earlier recorded in the Civil Hospital by A. S. I. Mohammad Mahboob P. W. 8, after the said A. S. I. Had received an information on telephone from one Dr. Mohammad Hassan Jawaid at 22-40 hours to the effect that one person namely Mohammad Swaleheen son of Abdul Karim aged about. 40 years resident of House No. 13 D/24/8 Nazimabad Gole Market, Karachi having been injured with bullet at Ist Chowrangi Golimar has been brought to the Civil Hospital by his father Abdul Karim for treatment and he has received bullet injury on his chest, His condition is precarious and any officer should be sent for action. This was recorded in police diary and is Exh.
16. Thereafter, the A. S. I. Mohammad Mahboob proceeded to the Civil Hospital and recorded the statement of injured Mohammad Swaleheen, under section 164, Cr. P. C. This statement was recorded after the A. S. I. Had sought perm_ssion from the Doctor for recording the statement of the complainant. The doctor certified on 6-I1-1975 that patient is fit to give statement and the same was recorded vide Exh.
17. The case was registered under section 307, P. P. C. And copy of the F. I. R. Was sent to S. H. O. Masood Hussain. Masood Hussain P. W. 10 who was the S. H. O. Of Golimar Police Station received the F. I. R. At about 12 mid-night. He proceeded to the scene of offence. The inspection of the vardat was done at the pointation of P. W. Mohammad Naseem. The scene of offence was on the dual carriage road. There were blood stains on the road which were secured with wet cotton swabs and the same was recorded under memo of vardat Exh.
8 prepared in presence of Mashirs Mohammad Naseem and Piarey Khan. He recorded statements of P. Ws. Mohammad Swaleheen, Abdul Aleem, Abdul Naeem, Mohammad Naseem and Abdul Karim on 7-11-1975. On the same day he had arrested the accused Raees Ahmad at about 10 p.m.
On interrogation the accused led him and two Mashirs Abdul Haleem and Noor Ahmad to house No. 8/27 B Area, Liaquatabad, Karachi. Wherefrom, the accused took out 32 bore revolver, which was secured by the police under Mashirnama Exh.
20. Two blood stains cotton swabs and three pieces of cotton clothes, secured by the Medical Officer from the body of the injured, were sent to Chemical Analyser for his report. The report is Exh. 23 which shows that all the articles were stained with human blood. The accused thereafter was challaned. The accused was separately challaned under section 13-D of Arms Ordinance but he was acquitted from the same.
3. The accused in his statement under section 342, Cr. P. C. Has denied the incident completely. The accused has stated that he had enmity with the first informant due to business rivalry as he was partner of his cousin Shakeel in New Prince Watch Company which was situated near the shop of the first informant. The complainant therefore implicated him falsely as result of which, the business of accused and his cousin had collapsed and shop was closed, and thus, the first informant achieved his object. Accused further stated that .All the witnesses are the members of the family and deposed against him due to enmity.
4. Two points for determination were (1) whether P. W. Swaleheen was injured by bullet shot; (2) whether the accused gave the bullet injury with intention to kill him. The learned trial Judge answered both the points in the affirmative and awarded sentence above referred.
5. The learned counsel for the appellant Mr. Sami Ahmad has attacked the judgment on several counts. His main contention is that since there is an admitted enmity between the complainant and the accused, therefore, the statement of the complainant should not be believed without independent corroboration: He has contended that statement of Abdul Karim who is father of the complainant and the statements of Abdul Naeem and Abdul Azeem, the two minor sons of the complainant cannot be used to corroborate the testimony of the complainant as they are the close relatives of the complainant who is the bitter enemy of the accused and therefore, these witnesses have involved the accused at the instance of the complainant. Mr. Sami Ahmad has further submitted that the statements of the child witnesses Abdul Naeem and Abdul Azeem should not be believed as there is inconsistency in their statements in respect of the time of their arrival, and the manner of their arrival at the shop. Mr. Sami Ahmad has relied upon number of authorities to the effect that the statements of interested witnesses if inimical must be corroborated by independent corroboration, PLD 1965 SC 111, 1972 SCMR 651. Mr. Sami Ahmad had also relied upon PLD 1960 SC 387. Mr. Sami Ahmad has further stated that the injured Mohammad Swaleheen should not be believed further on account of the fact that in his deposition before the Court he had tried to conceal enmity with the accused and it was only at the time of cross--examination that he was forced to admit that he had business rivalry with the accused. But, I find that in the F. I. R. This business rivalry had been clearly indicated by the complainant and his statement in court on this account was clearly an attempt at improvement but of no significance.
6. It is quite true that there are a number of rulings from the Supreme Court of Pakistan as well as many decisions of High Courts to the effect that in case of enmity between the parties, the version of the complainant and interested witnesses should not be believed without corroboration. But, this rule is not absolute and in this respect I had sought the services of our Research Officer Mr. Zia Jamsheed and he pointed out to me that in PLD 1977 SC 557, it has been held that interested witnesses could be relied upon without corroboration. This ruling was pointed out to Mr. Sami Ahmad. Further in 1969 SCMR 437 it was held that corrobora--tion of interested witnesses was not always necessary: Further in PLD 1960 SC 387, in the famous case of State v. Niaz Ahmad it was held that substitution was a thing of rare occurrence. In fact there is no universal rule or a provision of law that the testimony of interested witnesses must always be corroborated, but the Courts do look for corroboration of the statement of an interested witness and particularly an inimical witness a the same is more in accord with the safe administration of justice. Therefore basically, the circumstances of each case have to be scrutinized in order to ascertain whether the corroboration is necessary or not. Further in vie w.4 of dictum of their Lordships of the Supreme Court in the case of Niaz Ahmad v. The State if the allegation of the complaining party is against one person only then it is not usual to expect that the complaining party would no' involve the person who has really caused the injury but on the other hand would falsely involve and substitute a person with whom they have a, previous enmity. More particularly so when it is possible to identify the person who has caused the injury. But, Mr. Sami Ahmad tried to distinguish PLD 1977. SC 557 that in the circumstances of this case, the High Court had sought the corroboration of the statements of the, interested witnesses from certain circumstances present in this case. I however, find that the principle has been clearly Laid down by the Supreme Court that in exceptional cases even interested and inimical witnesses could be relied upon without corroboration.
7. In the light of the above principles if one looks at the circumstances of this case then it becomes apparent that the complainant has named the correct person as his assailant. The admitted position is that complainant Swaleheen has received two bullets wounds one on his chest on the right side of the shoulder and the bullet has almost gone to the other side of the body. The other bullet wound is on the arm. The Doctor has found the bullet injuries on the body of the complainant.
Moreover, the blood was found at the spot where the scene of offence' was alleged to be and the cotton swa b which was soaked by the police from the blood found on the spot has been found to be stained with human blood by the Chemical Examiner. The scene of offence is on a main road from Liaquatabad to Nazimabad and it is a short distance from the first Chowrangi. There was some light at the spot which would be sufficient to identify a person who fired from very close range even though the light may not be sufficient to identify a person from some distance. Memo of vardat shows, that there were 7 electric bulbs on the board of War Motors which was 24 paces away from the vardat and the evidence of Dr. Javeed shows that there was charring on the clothes of the complainant in an area 1" diameter which shows that the bullet was fired from not more than 4" away from the injured and since the bullet had entered into the front part of the body, therefore, the injured was looking at the assailant when the bullet was fired, and therefore, in these circumstances, it would not be difficult for the complainant to identify the assailant, who was so close to him and there was some light near about, although the place may not be as brightly lit as the First Chowrangi itself. Mr. Sami Ahmad has pointed out that the complainant had said that it was dark spot but I think that in view of the memo of inspection which clearly shows light being available near about, it was probably a comparative statement about the darkness that the complainant was referring to. In these circumstances, I think that the complainant had seen his assailant and there is no reason to suppose that he would hide the real culprit and instead of naming the real culprit he would substitute the name of the accused only on account of the previous business rivalry and enmity. In this respect, another important aspect of the case is that the offence had taken place at 9-15 p.m. And the injured was first taken to Abbasi Shaheed Hospital but was not treated there, and thereafter, he was taken to another hospital, but even there he was not treated, and so eventually, he was taken to the Civil Hospital where he was admitted: A telephonic message was sent therefrom by Mr. Mohammad Hassan Javeed and the same was recorded in police diary as Exh. 16 at 22-40 p.m. By A. S. I. Mohammad Mahboob and thereafter even the formal F. I. R. Was recorded at 23-30 hours at Golimar Police Station on the basis of the oral statement of the injured Mohammad Swaleheen recorded by A. S. I. Mohammad Mahboob and in this statement, the injured has clearly involved the accused Raees and has also given the motive of business rivalry. The F. I. R. Was therefore lodged without any loss of time, and therefore, the version of the complainant who was seriously injured cannot be said to be an afterthought or on account of some premeditation in order to falsely involve an innocent person in the shape of the present accused. In these circumstances of the case: it would be difficult to throw away the testimony of the complainant and relying upon PLD 1977 SC 557 and PLD 1960 SC 387, I would have no hesitation in relying upon his statement. His statement has even been corroborated by the F. I. R. Lodged by him. Mr. Syed Sami Ahmad has contended that the statement on telephone of Dr. Mohammad Hassan Javeed Exh. 16 could alone be regarded as the F. I. R. And not the statement of the complainant recorded formally in Exh.
18. But, I do not agree with the learned counsel in this respect and I am of the view that the F. I. R. Under section 154, Cr. P. C. Is the one based on the statement of the complainant and the same is Exh. 18 as this F. I. R. Gave details of the cognizable offence. The earlier telephone message of Dr. Hassan Javeed cannot be regarded as the F. I. R., therefore, this F. I. R. Exh. 18 can be taken into consideration providing a corroboration to the statement of the complainant if any such corroboration is necessary. Mr. Mazharul Haq Hassanally, the learned Assistant Advocate-General has pointed out that it was held in PLD 1966 Kar. 67 that F.
I. R. Can be used either for discrediting the - informant or by the prosecution for the purposes of corroborating the informant under section 167, Cr. P. C. Moreover two factors, viz (i) the medical evidence showing that injured had received the bullet injury and (ii) the memo of vardat supported by the statement of Investigating Officer and Mashirs Mohammad Nasim and Piarey Khan showing that the blood was found at the place, where the complainant had alleged the scene of offence to be situated can be taken as corroborating the statement of the complainant. Furthermore, the presence of Abdul Karim with the complainant cannot be doubted as he had-brought him to Civil Hospital as shown in Exh. 16 which is the statement on telephone of Dr. Mohammad Hassan Javeed recorded in police diary in Golimar Police Station at about 22-40 hours on the same day. And, therefore, his statement can also be read in support of the statement of the complainant as he has witnessed the scene of offence and no father would conceal the name of the real person who had attacked his son with a pistol and instead he would give the false name. Similarly, the name of the children have been mentioned in the F. I. R. Which had been lodged without any loss of time and therefore, their presence cannot be doubted. They have fully supported the prosecution case. In fact, if the complainant wanted to cite the name of false witnesses he should have given the name of Piarey Khan who was his servant and had accompanied him in his car upto Liaquatabad or the complainant would have given the name of his brother Mohammad Naseem who sits on the shop of P. W. Abdul Karim which is opposite to the shop of Mohammad Swaleheen, or the complainant would have at least given the name of his eldest son Aleem who is alleged to be of 15, 16 years of age, and is alleged to have been attending the shop. The names of these three persons have not been mentioned by the complainant and therefore I am convinced that the complainant has stated truth when he gave names of his father and minor sons who were accom--panying him in the car. These persons have clearly supported the version of their father. They are innocent boys and their evidence has remained unshaken on the main point of the incident and therefore, their testimony cannot be doubted only on the score that there is some contradiction in the statements of the children on the minor point of their coming to the o shop at different times. Mr. Sami Ahmad has also argued that independent persons who must have gathered on the spot have not been produced. There is admission in the depositions of prosecution witnesses that some persons had gathered on cries. But these persons could not have witnessed the crime and they could have utmost corroborated the testimony of the complainant and his father. But, the corroboration is available fro other circumstances as explained above and hence the failure to examine the persons who had gathered after the actual commission of the crime would not affect the merits of the case.
8. In view of these circumstances, I am unable to agree that Raisuddin is not the assailant. I must however mention that Mr. Sami Ahmad ha very ably argued the case in great detail and produced wealth of case-la on the point of interested testimony. The result is that the appeal, is dismissed.