' KHAWAJA SHAHAD AHMED, J---The captioned Criminal Appeal No,13/05 has been filed against the judgment recorded by a learned single Judge of the Shariat Court on 30-5-2005 whereby the appeal of the appellant, herein, against the judgment recorded by the District Criminal Court Sudhenuti/Pallandari has been disposed of and the reference made by the District Criminal Court Sudhenuti was accepted and the sentence of Qisas awarded to the appellant confirmed by holding as under:- ' My conclusion, therefore, is that the reference made by District Criminal Court Sudhenuti/Pallandari is accepted and the sentence of "Qisas" awarded to Aurangzeb, accused- appellant, vide judgment dated 29-10-2003 is confirmed. Consequently, the appeal fails."
2. Brief facts of the case are that Muhammad Yaseen complainant, made a written report at Police Station Pallandari on 4-3-1998 at 7-00 a.m. Wherein he mentioned that he is functioning as Guard at the Bungalow of Deputy Commissioner Pallandari. At about 6-30 a.m. Muhammad Sarwar Khan informed him that he had gone to the house of Raj Muhammad to condole the demise of one Mst.
Afsar Jan. Aurangzeb, appellant herein, was also there. When Muhammad Haleem, deceased, a brother of the complainant also came to the house of Raj Muhammad and was sitting there, the convict Aurangzeb went out of the house and after 4 or 5 minutes came back along with Said Akbar, Ali Bahadur and Mushtaq in furtherance of there common intention to kill Muhammad Haleem. Aurangzeb fired three shots with his pistol which hit Muhammad Haleem on the right side of the chest and consequently he died on spot. The complainant in his report also narrated that Raj Muhammad, Muhammad Hussain Alam Hussain and Muhammad Sarwar witnessed the occurrence. The motive for murder was narrated in the F.I.R. By submitting that Aurangzeb and the deceased had dispute about some land and civil litigation between the parties was pending. It was also narrated in the F.I.R. That about 5/6 months back Aurangzeb attacked the deceased with .7MM rifle which was snatched by the deceased from the accused and the accused Aurangzeb was challaned in the competent Court. The F.I.R. (Ex. P13) was filed on 4-3-1998 at 7-00 a.m. In the morning. The time of occurrence was narrated as 8-45. The Police Station is about 17/18 kilometers from the place of occurrence. On this report the investigation was initiated and final challan was placed before the competent Court which through judgment dated 29-10-2003 sentenced the appellant, herein, with punishment of death as Qisas under section 302(a) of the Penal Code. He was also punished with 1 year rigorous imprisonment under section 13/20/65 of the Arms Act. The trial Court also submitted a reference to the Shariat Court for confirmation of the sentence awarded to the convict herein. A learned Judge of the Shariat Court alter considering the ocular version narrated by the eyewitnesses and considering the supportive and corroborative evidence particularly the site-plan and the postmortem report finally modified the sentence awarded by the District Criminal Court Pallandari to the extent of sentence recorded under section 13/20/65 of the Arms Act and while confirming the sentence of Oisas awarded to the convict, herein dismissed the appeal filed by the appellant, herein.
3. It has been contended by Mr. Asghar Ali Mallick, the learned counsel for the appellant, that the Courts below failed to attend to a vital point in the case relating to delay of filing F.I.R. In his estimation the alleged incident took place on 8-45 a.m. On 3-3-1998 whereas the F.I.R. Was lodged on 7-00 a.m. On 4-3-1998 which delay is itself sufficient to unfold that the prosecution story is concocted and false one and that the appellant has been implicated in the case illegally. As no explanation has been furnished so far as late filing of F.I.R. Is concerned, the prosecution story couldn't be considered as correct by the Courts below. Iris other argument is that the occurrence took place in the month of March at 8-45 PM when there was complete darkness in this region and identification being doubtful it can safely be submitted that the occurrence took place somewhere else and not in the house where allegedly the deceased and others had Collected to condole the death of a lady. This argument relates to one of the vital points involved in the case, which if proved, makes the identification of the accused doubtful and destroys the veracity of the ocular account furnished by the eyewitnesses. The alleged eye-witnesses made improvements in the statement recorded before the Court as compared to the statement recorded under section 161, of the Criminal Procedure Code before the investigating agency. In fact the prosecution witnesses tried to fill in the lacunas of the prosecution case by improving their statements which fact also casts serious doubts and dents in the prosecution story, submitted the learned counsel. The oral evidence doesn't support the distance between the different places as shown in the site-plan prepared by the Patwari. The Doctor who appeared in the Court in support of the medical report prepared by him has mentioned the distance between the convict and the deceased at the time of incident which is totally different from the distance narrated in the site-plan by the Patwari. While submitting that the case against the appellant is plotted one, which has been prepared simply because that the complainant is a Police functionary, the other Police personnel involved in the investigation have implicated the appellant. The learned counsel also disputed the correctness of recoveries and recovery memos. Which in his estimation, are self-contradictory and creating doubt in the prosecution story, therefore, the appeal merits acceptance and the appellant deserves to be acquitted as under the settled principle of law benefit of doubt has to go to the accused in the criminal cases. The learned counsel also submitted that according to the prosecution story and the F.I.R. The dead-body of a woman has been shown kept in a small room but nothing has been brought on record to show that any other woman from out of the inhabitants or from locality around was present, which is unnatural. A dead-body of a woman is always attended by the ladies and not by the male members of the family or locality. The deceased or the other witnesses couldn't sit in the room where dead-body of the lady was kept under the local customs. He also disputed the motive for murder by submitting that the whole story about attack of the convict-appellant on the deceased with a .7MM gun and the dispute in respect of some land and consequent litigation between the parties is not true. No blood-stained clay was recovered from the room where the occurrence is alleged to have taken place nor was the chair on which the deceased was sitting, recovered. The learned counsel also prayed that the appellant has been deprived of the right of producing his defence evidence, therefore, it is a fit case for remand.
4. It may be mentioned here that the convict has produced two persons as defence witnesses, therefore, this argument is repelled and need not be discussed in the following parts of the judgment. The learned counsel also submitted that the Shariat Court has narrated the case-law which was not referred to by the prosecution in the trial Court or before the Shariat Court. This argument is also rejected by holding that all the Courts have to follow the law and case-law laid down by the superior Courts even if not referred by the parties or their counsel. His 9th objection to the validity and correctness of the findings is that the charges under sections 242 and 342 of the Criminal Procedure Code have been framed together which is a fatal error committed by the trial Court. To this extent the argument of the learned counsel is also rejected as charge under section 242 was framed on 17-4-1999 whereas the charge under section 342, Cr.P.C. Was recorded on 8-1- 2003.
5. As against it Mr. Sardar Khan, the learned counsel for the complainant and the learned Advocate-General, representing the State, argued that the guilt has been brought home to the appellant, the prosecution story is supported by the eye-witnesses and supportive and corroborative evidence particularly the report and statement of the Doctor and the site plan of the place of occurrence support ocular version. The learned counsel has also supported their version on the points raised by the learned counsel for the appellant, by relying on different judgments of this Court and the Supreme Court of Pakistan.
6. We have heard the learned counsel for the parties and gone through the record, the contention of the learned counsel for the appellant that considerable delay in filing the F.I.R. Casts serious doubt on the prosecution story, is not correct in view of the fact that as, has earlier been mentioned, the distance between the. Police Station and the place of occurrence has been shown by the concerned Police as 17 to 18 kilometers. The statement of Muhammad Yaseea, complainant, is recorded by the trial Court on 27-12-1999 which finds place at pages 69 to 73 of the trial Court's file. Nothing has been brought on record to suggest that the distance between the Police Station and Mozia Gorah (the place of occurrence) to be less than 17/18 kilometers and as against it during cross-examination of the complainant he has been suggested different times of filing of F.I.R.
Which he has rejected. Even otherwise it reveals from the record- that the concerned Police didn't conduct the investigation and attempted to destroy the case with the result that the D.I.-G. Police intervened. Mere allegation or assertion that F.I.R. Has been lodged late in the day, cannot be accepted unless some evidence has been brought on record to support the version. The statement of the complainant reveals that he rushed to file the F.I.R. When he received the information that his younger brother has been murdered. His statement in the Court and the suggestion put during the cross-examination entertain no doubt in our mind that the objection in respect of filing of delayed F.I.R. Is not correct, therefore, stands rejected.
7. The other argument by the learned counsel for the appellant is that the occurrence admittedly took place in the darkness of night, the identification of the accused becomes highly doubtful and it can safely be held that the accused has falsely been roped in the murder case of Muhammad Haleem, deceased on the basis of enmity between the parties. This argument relates to one of the points of vital importance in the case, which if proved, makes identification of the accused doubtful and seriously destroys the truthfulness and impartiality of the eyewitnesses. This is correct that the identifications of the accused in flashlights of torch or lantern have always been considered as doubtful. While adjudging so the Courts kept in view the distance from where alleged accused are identified coupled with the truthfulness of the witnesses deposing the identification of the culprit. In the present case in the explanation to site-plan (Exb. PE/1) it has categorically been explained by the Patwari that place No,3 is about 6 feet from places Nos.1 and 2. Explanation No,3 deals with place in the site-plan from where the Appellant allegedly fired on Muhammad Haleem, deceased, who has been shown to be at place No, 1 . Place No,2 in the site-plan describes the place where eye-witnesses Raj Muhammad Khan, Muhammad Hussain Khan, Alam Hussain Khan and Muhammad Sarwar witnessed the appellant firing on the deceased, Muhammad Haleem. This brings us to the conclusion that according to the site-plan the eyewitnesses identified the appellant while standing at about 6 feet's distance, which even if doubled, identification of the accused can safely relied. If the explanations of the site-plan are considered keeping in view the distance found by the Medical Officer in his remarks in the postmortem report where distance between the assailant and the appellant has been shown as 1 yard to 3 yards, it becomes abundantly clear that the identification has been, pleaded by the persons who were available and saw the appellant firing on the deceased from a distance of 6 to 9 feet. Admittedly the deceased was fired at in a room which has been shown as 22' x 16' in size. The convict is shown to have fired from a distance of 6 feet. The convict was identified in the light of L.P.G. Gas-lamp. As has earlier been observed, the identification could be disputed if the eyewitnesses were found to be interested witnesses whereas in the present case it was an occasion of sad demise where the people had collected for condolence or for obsequies purposes. It may also be mentioned here that the place of occurrence has been shown in a covered room where identification cannot the, disputed as compared to the places of occurrence where the accused are identified in streetlight or torchlight while running. Similarly the accused has not been shown to have muffled himself where his identification is unnatural light could be disputed. On the basis of above we reject the contention that the eye-witnesses couldn't identify the assailant/appellant in the gas lamp's light. During the course of arguments while developing the contention of doubtful identification the learned counsel submitted that the place of occurrence was not the same as shown by the prosecution. This argument doesn't also favour with us, keeping in view the record of the case. Place of occurrence has categorically been mentioned in the F.I.R. And the names of the eye-witnesses have also been detailed in the said report. The facts mentioned in the F.I.R. Have been conveyed to the complainant, therefore, the contention of the defence that any concoction about the place of occurrence has been made by the prosecution, doesn't ring true. From the whole record it is abundantly clear that the occurrence took place at the house of Raj Muhammad, where the people had gathered to mourn the sad demise of his sister.
8. The other argument of the learned counsel that oral evidence doesn't support the exact distance between different places as shown in the site-plan as prepared by Patwari, and the distance shown by the Doctor in the post-mortem report, we have considered this argument.
' The Patwari has explained that the distance between place No,3 and place No,1 is 6 feet while the Doctor has given the distance approximately between 1 to 3 yards, which means that the distance between the appellant and the deceased was 3 to 9 feet. This may be observed without diving deep that the distance found by the Doctor is approximate and conservative whereas the site-plan shows the distance after measurement. The deceased was sitting on a chair in the room at place No,1. The eye-witnesses are shown at place No,2 in the site-plan, which is 11 feet from place No,1, where the deceased was sitting whereas place No,3 is shown as 6 feet from place No,1, therefore, the argument of the learned counsel that there is a considerable difference between the distance from where the appellant fired on the deceased, has no substance.
9. As far the argument of the learned counsel that the recoveries and recovery-memos. Are doubtful and self- contradictory, which cause serious doubt on the prosecution story, is concerned, we may observe here that nothing substantial has been brought on the record and even otherwise the prosecution case appears to be based on ocular version as has been discussed by the Courts below as well. During the course of arguments the learned counsel drew our attention for favourable consideration by submitting that the prosecution story is totally incorrect in view of the fact that according to the obtaining customs the dead-body of a woman is not usually placed where male members of the family or locality sit for condolence. This argument is correct to some extent and it is definitely usual in our society that male members of the family or locality collect or sit in separate places but in the present case this important fact escaped the attention of the learned counsel that the occurrence has been pleaded to have taken place at night. The defence itself suggests that except gaslight there was complete darkness outside. At such time this is not unusual that people gather inside the house where the dead-body is kept. Even otherwise this is not an absolute rule nor have other obtaining circumstances been mentioned from where it could be gathered that all male and female members had collected in the same room. This may also be mentioned here that it was heavily raining outside at the relevant time according to the statement of eye-witness Raj Muhammad. The site-plan and the ocular version clearly reveal that the deceased was sitting on a chair near the dead-body when the appellant fired at him from the door. During the course of arguments Mr. Asghar Ali Mallick, the learned counsel, attempted to develop the argument that the prosecution story reveals about the placement of the accused- convict from where he fired on the deceased. According to him the appellant didn't enter into the room but is alleged to have fired while standing outside the room near the entrance door. We don't agree with the learned counsel in view of the fact that the eye-witnesses have clearly narrated that the convict fired at the deceased Muhammad Haleem. The site-plan also clearly indicates the place where the accused was standing when he fired on the deceased.
10. A very important point, which has been raised by the learned counsel for the appellant and dealt with to some extent by the Courts below, is in respect of veracity of the ocular version which has been disbelieved to the extent of other acquitted accused nominated in the F.I.R. And mentioned involved in the commission of offence. Suffice it to say that the principle-false in one thing false in all--has not been followed by the Courts in this country, particularly in presence of conditions prevailing in this part of the world. In such like cases the Courts have a duty to sift the grain from the chaff. Mere fact of evidence of eye-witnesses being not relied upon against some accused cannot react on credibility of evidence against the other accused. The Supreme Courts of Pakistan and Azad Jammu and Kashmir have repeatedly held that the evidence not accepted in respect of some accused needs not necessarily be rejected in other respects as well. The referred maxim or principle appears to be based on premise that the credit of a witness is indivisible. A Similar proposition was raised before this Court and considered by the learned Judges of the time in the cases reported as PLD 1978 SC (AJ&K) 146, 2007 PCr.LJ 1757 and 2001 PCr.LJ 524 wherein after considering the case-law on the subject it was held that although evidence of the eyewitnesses has been disbelieved by the trial Court to the extent of some accused, no legal infirmity is found to have been committed by the Courts below to accept the deposition to the extent of real accused.
The proposition has been dealt with by this Court in the case reported as PLD 1978 SC (AJ&K) 146 by observing as under:-- "The maxim `falsus in uno falsus in omnibus' (false in one particular false in all) is a dangerous one especially in this part of the country 'for if whole of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to a story, however true in the main. When main part of the deposition is true it should not arbitrarily be rejected because of want of veracity on perhaps some very minor point' (Fields Law of Evidence in British India, 8th Edition XL and XLI).
Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, beside the real culprits, his whole deposition may not be rejected when the main portion of evidence, which rings true can be legally relied upon. We are supported in our view in PLD 1977 SC
(Pak) 413. In that case 8 persons were tried by the Additional Sessions Judge Sukker on a charge under section 302/307 read with Section 148/149, P.C. And three persons under sections 302/34 and 307/34 and acquitted all the other persons. The three convicted persons went in appeal to the High Court. The State also filed an appeal against the acquittal of the five persons. The High Court dismissed the appeal of the State and allowed the appeal of the three convicted persons. The State went in appeal to the Supreme Court and the Supreme Court convicted Nazo and Abdul Hameed, respondents Nos. 4 and 6 in the case as according to the Supreme Court, their acquittal amounted to grave miscarriage of Justice. The appeal against the 3rd accused was however refused."
' Even otherwise, as has earlier been mentioned, if the evidence of a witness inspires confidence and the Court considers the statement of a witness trustworthy it has to be relied upon. In the present case the eye-witnesses include Raj Muhammad, Muhammad Sarwar, Muhammad Hussain and others. These witnesses have not deposed that some other people were involved in the murder of Muhammad Haleem. The trial Court as well as the Shariat Court have rightly relied on the statements of the eyewitnesses. We may also concur with the same as according to our own considered view, eye-witnesses Raj Muhammad and others are found being independent and natural witnesses of the occurrence, their statements were found confidence inspiring and the appellant has failed to bring on record any details of enmity of the eye-witnesses with him.
11. Mr. Asghar Ali Mallick, the learned counsel, during the course of arguments, has referred to some of the lapses by the prosecution agency and on those grounds prays for acquittal of the accused.
Suffice it to say that during investigation of the case the complainant developed some complaints against the impartiality of the investigation team with the result that Deputy Inspector General had to intervene. Even the complainant has charged the investigating agency to have received Rs,500,000 from the convict and his party, therefore, the arguments of the learned counsel need no consideration. As far the argument of the learned counsel that no blood-stained clay was recovered from the room where the occurrence is alleged to have taken place, the Shariat Court has rightly held that it has been proved that the deceased was wearing a waistcoat and shirt, therefore, in presence of thick clothing it is possible that blood had might not fallen on the earth.
Even otherwise this argument, in our view, doesn't destroy the prosecution story which is otherwise proved by ocular version and supported by sufficient corroborative and confirmative evidence.
12. The appellant has produced two witnesses in defence who have stated that the weapon of offence was handed over to the Police by the brother of the convict, therefore, the evidence of the prosecution to the extent that recovery of the weapon of offence has been made on pointation of the convict being untrue and incorrect, whole of the prosecution story falls to the ground. We have gone through the statement of defence witnesses who definitely deposed that the weapon of offence was handed over to the appellants by the brother of the accused-convict. These two witnesses, however, have categorically stated that they didn't know about the occurrence and even the fact that the occurrence took place at the residence of Raj Muhammad, where dead- body of his sister was placed and people had gathered there to mourn the sad demise. The statement of these two defence witnesses when read as a whole, doesn't inspire confidence and their statements to the extent of specific point doesn't appear to he trustworthy. No other point has been pressed before us during the course of arguments. The appeal filed by the appellant fails and the judgment of the Shariat Court is, therefore, maintained.