' SHAHID ANWAR BAJWA, J.---Appellant was charged under section 302, P.P.0 that on 6-7-2002 at about 1330 hours at Boundary of KPT near Kauser Masjid Keamari, Karachi he committed murder of his nephew namely Syed Meharban Shah by causing him Chhuri blows. He was tried and vide Judgment dated July 1, 2009 he was convicted under section 302(b), P.P.C., and was sentenced to undergo imprisonment for life and was also directed to pay fine of Rs,1,00,000, which if recovered was ordered to be given to the legal heirs of the deceased as compensation. In case of non- payment of fine he was ordered to suffer further rigorous imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was allowed to the appellant. The Court further observed that lesser punishment was awarded because admittedly incident had taken place in appellant's house and it was not clear as to what had actually happened before the incident and therefore such facts were treated as mitigating circumstances for awarding lesser punishment
2. F.I.R was registered on 6-7-2002 at 1830 hours. It was registered on the basis of statement under Section 154, Cr.P.C. Of one Syed Ameer Shah son of Syed Sanwal Shah who stated that his son Meharban Shah (deceased) was married with Mst. Shama Bibi d/o Mubarak Shah about 8/9 months ago. He stated that Mst. Shama Bibi due to some domestic issue had become angry and had gone to house of her parents about 1 and 1/2 months prior to the incident. The complainant stated that he and his son Mahrban Shah went to the house of Mubarak Shah so that they could bring Mst. Shama Bibi with them. Mst. Shama Bibi refused to return. The complainant stated that he came to know through their relative that the present appellant was stopping Mst. Shama Bibi from returning to her husband. It may not be out of place here to mention that appellant is maternal uncle of the deceased. It is also stated in the F.I.R. That about 3/4 months prior to the incident the appellant and appellant's brother-in-law one Papu were in complainant's home when appellant abused his brother-in-law, upon which deceased Meharban Shah warned appellant against abusing appellant's brother-in-law in house of deceased. Upon this harsh words were exchanged between appellant and the deceased. On 6-7-2002 the complainant stated, when he came to his house his friend Younus informed him that his son Meharban Shah had been murdered and his dead body was lying at Civil Hospital. The complainant stated that he reached the mortuary and saw dead body of his son. His chest, left side at waist up from hip and on the left arm there were marks of injuries. The complainant further stated that his relative Javed informed him that he was present at Kamela Chowk, Lyari with his rickshaw when at about 1-30 p.m. He saw appellant who was running with his son and after sitting in rickshaw they went away, which made Javed suspicious. So he went to the house of appellant. There he saw a rush of people and he also saw that Meharban Shah was lying in unconscious and severely injured condition. He heard from the persons present on the spot that Saeedur Rehman at 1-30 p.m. Attacked Meharban Shah with Chhuri blows and thereafter fled away. Javed brought Meharban Shah to Civil Hospital in taxi and there doctor pronounced him dead.
3. At the trial the complainant Syed Ameer Shah appeared as P.W.1. He stated that he was informed by his friend that his son had been murdered. He went to Civil Hospital and he saw there dead body of his son, who had received injuries with sharp-cutting weapon on left side of his chest, left back-side and left hand. He stated that Javed Khan brother-in-law of his wife had informed him that at about 1-40 p.m he was present at Kamela Chowk Keamari when he saw Saeedur Rehman in puzzled condition. Saeedur Rehman went away in a rickshaw. He stated that Javed further told him that he went to the house of Saeedur Rehman and saw Meharban Shah was lying on ground in injured condition. Javed took Meharban Shah to hospital. He also narrated the incident of family acrimony prior to the death. He also stated that Shad Yaqoob and Ghulam Haider were with deceased at the time of incident. In cross-examination he stated that he went to the Police Station on next day after receipt of the dead body. He also stated that he could not say that injuries on the body of his son were caused by Glass or Chhuri. He stated that it is not a doctor who can ascertain the cause of death.
4. P.W.2 was Inspector Khalid Javed. He stated that on 6-7-2002 he was posted as Additional S.H.O.
At P.S. Jackson. At about 3-00 p.m Saeedur Rehman came to the police station. He was wearing white shalwar-kameez Shirt of accused had blood-stains on it. Accused disclosed to S.I.P. Nazir, who was duty officer that he had killed his nephew. S.-I. Abdul Aziz made him sit and gave him a glass of water. Thereafter Abdul Aziz informed S.H.O. And he directed Inspector Jabbar of Investigation Branch. Inspector Jabbar came and arrested the accused. Accused took Khalid Jawed and others to the place of incident from where the crime weapon was recovered.
Bloodstained Chhuri was stated to be produced by accused from the back side of the door. Imran was mashir of recovery of Chhuri. Imran was residing in the same mohalla where the crime weapon was recovered. In cross-examination witness admitted that he had not mentioned about shirt in his statement under section 161, Cr.P.C. He also admitted that Inspector Jabbar did not call any person from the neighbourhood to act as mashir of recovery. He also admitted that he could not say whether the accused was involved in the offence or not. In the mashirnama of recovery which is recorded by Inspector Abdul Jabbar and is witnessed by Imran of neighbourhood and Inspector Khalid Javed of P.S Jackson. It is recorded that accused himself being in custody led and entered into his house and from opposite the main door produced one Chhuri which was blood- stained and which he stated was the weapon of the murder. It was taken into possession and was duly sealed at the spot.
5. Muhammad Rafique was P.W.3. He stated that he came to know that deceased had been killed by the appellant. He consequently went to the hospital and was told that the dead body was in the mortuary. He stated that he saw the dead body in the mortuary. He stated that police prepared mashirnama of dead body and inquest report on the spot on which the witness also signed. During cross-examination he stated that he had been a friend of father of deceased for 20 years. He stated that he was informed by one Bashir Koja regarding the incident in which deceased had lost his life. It may be pointed out that the name of Muhammad Rafique did not appear either in the F.I.R. Or even in the challan.
6. P.W..4, was Ghulam Muhammad. His name also did not appear either in the F.I.R. Or in the challan.
He stated that on the day of incident he saw that the present appellant and the deceased were fighting with each other and the present appellant was armed with Chhuri and that he was causing Chhuri blows to the deceased. Deceased fell down after receiving injuries. He further stated that the present appellant threatened that if any one came forward he will also be murdered. He stated that he and his friend Shahzaid who was with him became frightened and went to their houses. In cross-examination he stated that 20/25 persons were present at the spot.
His statement was recorded by the police on 7-7-2002.
7. P.W.5 was one Syed Shah. He stated that he was present in the house of his niece when he heard commotion. He stated that he went out side the house and saw that the appellant and deceased were fighting with each other. He stated that he saw that the appellant gave Chhuri blows to deceased on his chest and thereafter he went away. In cross-examination he stated that they were fighting with each other at street. Many people were present at the spot and he could not give their exact number. He stated that his statement was recorded after three days of the incident and he did not try to intervene as the present appellant was armed with Chhuri and he was causing Chhuri blows to the deceased. He admitted that deceased was son of his brother-in-law.
8. Next witness was A.S.-I. Abdul Aziz, He stated that on the date he was posted along with Inspector Khalid at P.S. Jakson. He stated that at 1.45 p.m. Present appellant came to the police station and disclosed before him that he had murdered his nephew Saeedur Rehman. He further stated that the present appellant disclosed to him that he murdered deceased with Chhuri blows. He stated that he informed P.I. Jabbar of investigation branch. He stated that the present appellant was arrested in his presence when he appeared at the police station and that he was arrested by P.I.
Jabbar. Witness produced mashirnama of arrest. During cross-examination the witness disclosed that he had been residing at Keamari since his childhood and that the present appellant was known to him for last 15/20 years. He denied that there had been any enmity between him and the appellant and denied that the appellant always advised him to grow a beard.
9. P.W..6, was Rahim Shah. He stated that at the material time he was posted as Police Constable at P.S. Jakson. He stated that his duty hours were from 8-00 a.m to 8-00 p.m. He stated that the appellant himself came to the police station and admitted his guilt and told Sub-Inspector Aziz that he had committed the murder. Witness stated that on direction of his officer he put the present appellant in lock-up. He further stated that personal search was made by the officer and he recovered one Chhuri from the appellant. He further stated that the officer took Chhuri and clothes of the appellant in custody and prepared mashirnama of arrest and recovery in his presence. During cross-examination he stated that the accused appeared at P.S. Between 4-30 and 5-00 p.m. He admitted that in the mashirnama of taking the accused in custody, recovery of Chhuri is not mentioned. He however, voluntarily, stated that Chhuri was recovered after mashirnama was prepared. He admitted that in his statement under section 161, Cr.P.C. He had not stated that accused who appeared in his presence before S.-I. 'Aziz had admitted his guilt. He admitted that he was not present in the room of his officer at the time of seizure of the property. He admitted that he had not stated in his statement under section 161, Cr.P.C. That the present appellant admitted guilt in his presence.
10. P.W.7, P.C. Rayasat Ali was next witness. He stated that on that day his duty hours were 2.00 p.m.
To 8.00 p.m. He further stated that Inspector Abdul Jabbar brought the present appellant. He stated that the present appellant was wearing Kurta Shalwar which was bloodstained. During cross- examination he stated that it was 4.30 p.m. And that the accused himself went to A.S.-I. Abdul Jabbar and admitted guilt and A.S.-I. Arrested him at the police station. He admitted that accused had not pleaded guilt in his presence.
11. M.L.O. Was P.W.8. He stated that when the body was brought to him deceased was wearing Shalwar only. Physical examination of the body revealed four injuries. One on upper chest, one on left renal area, one on palm of left hand and the last one also on palm of left hand. First two injuries were cavity deep, third injury was muscle deep and fourth injury was skin deep. Left lung was found ruptured and left chest cavity was found full of blood. Left kidney was also found ruptured and blood was found in the abdominal cavity. Cause of death was cardio respiratory failure due to haemorrhage and haemorrhagic shock resulting from sharp injury to left lung and left kidney.
During cross- examination he admitted that he had not preserved kidney and had not sent it to ascertain the real cause of death. Medico Legal Officer, Imran was next witness. He stated that deceased was brought in dead condition.
12. Investigating Officer Abdul Jabbar was F. W.10. He stated that on 6-7-2002 he was Incharge as S.I.O. At P.S. Jakson, when the appellant appeared before him and disclosed that he had committed murder of his sister's son by giving him big knife blows in his house. He stated that the accused was arrested. He stated that thereafter he along with S.-I. Aziz and Inspector Khalid went to the place of incident. He stated that from the place of incident he recovered blood stained earth and shirt of the deceased which was also blood stained. Mashirnama was prepared accordingly. He stated that he sent the recovered articles to Chemical Examiner. He produced report of the Chemical Examiner. In his cross-examination he admitted that incident had taken place in the house of the appellant/accused and the deceased was not residing in the house of the appellant. He denied that the deceased has attacked the appellant and that it was deceased who was the aggressor.
He admitted that letter to the Chemical Examiner was prepared on 29-8-2002 (the incident had occurred on 6-7-2002) and it was received by the Chemical Examiner on 18-12-2002. He admitted that no judicial confession of the present appellant was recorded.
13. After conclusion of evidence statement under section 342, Cr.P.0 was recorded. The present appellant stated that he was innocent and that he was apprehended by police while he was returning from his duty. Thereafter the impugned judgment was announced on 1-7-2009 and the present appellant was convicted under section 302(b) PPC as detailed above.
14. Learned counsel for the appellant made the following submissions:--
(1) Investigation is separate from operations. I.O. Has stated that he arrested the present appellant when he appeared at police station. Since he was one who arrested the appellant, the investigation by him was illegal.
(2) I.O. Has stated that he had prepared the inquest report whereas in actual effect inquest report was prepared by A.S.-I. Aziz.
(3) Exh: 7 is statement under section 154, Cr.P.C. And Exh: 13 is the Inquest Report. Both are stated to have been written by Aziz and handwriting on both is vastly different from each other.
(4) F.I.R. Lacks material particulars and the complainant improved his statement thereafter. The complainant in F.I.R. Stated that Jawaid informed him about death of his son and Jawaid was not produced as prosecution witness. Similarly P.W.1, in his statement has mentioned that Shad Yaqoob and Ghulam Haider were friends of the deceased and were present with him at the time of incident. Shad Yaqoob had not been produced. Although Ghulam Haider's name was not mentioned in the F.I.R. Therefore, inclusion of his name was an improvement. Similarly name of witness Ghulam Muhammad has not been mentioned in the challan or in the F.I.R.
(5) P.W.5, Syed Shah has mentioned only one injury i,e, injury to the chest of the deceased.
(6) It has also come in evidence that the present appellant and the deceased were fighting with each other. Although the present appellant was not present at the scene, if the story of the prosecution is admitted action that was taken by the present appellant was taken in self-defence.
This gets support from the fact that the incident is alleged to have taken place in the house of the present appellant.
(7) On the question of recovery learned counsel submitted that the I.O. Stated that Chhuri was recovered from house of the appellant whereas P.C. Rahim Shah stated that it was recovered from the person of the appellant at the police station.
(8) There is also discordance in statements as to who arrested the accused.
(9) P.W.7, Rayasat Ali stated that it was I.O. Abdul Jabbar who brought the accused to police station. Inspector Aziz (P.W.6) stated that accused appeared before him at the police station and he called I.O. Abdul Jabbar.
(10) Medical evidence is doubtful because it merely stated that wound on chest and renal area were cavity deep; no rib cut has been specified and depth of wound in the lung has not been specified. Depth of wound to the kidney is also not specified.
(11) There is another discrepancy in the medical evidence; although it is alleged that the same Chhuri was used it describes one wound as 4 cm X 2 cm on chest and the other 4 cm X 1.0 cm in the renal area.
15. There is no evidence whatsoever as to where did the shirt of the deceased go. Learned counsel relied upon a plethora of case law to which I shall refer to at due place during the course of the judgment.
16. Learned A.P.-G. Made the following submissions:--
(1) Neither the date and time of death is disputed nor it is disputed that death was caused by injury.
(2) Self-defence has been suggested for the first time when the I.O. Appeared as a witness. Self- defence was not suggested to any witnesses who actually saw the incident.
(3) No suggestion was asked from the doctor regarding injury to any bone and no suggestion was made to him regarding any ill will on his part towards the appellant. Medical evidence has not been challenged and no question in this regard was asked from the doctor.
(4) No enmity with the police has been alleged or suggested in the cross-examination.
(5) If there are two witnesses it is not necessary that both witnesses be produced, it is quality of evidence and not quantity of evidence which determines decision of the Court.
(6) It is a case of voluntary arrest and all the witnesses are at one that the present accused voluntarily appeared with bloodstained clothes, which clothes were sent to Chemical Examiner's and Chemical Examiner report was submitted. Clothes were sealed at the time of recovery and there is no suggestion whatsoever that seals were tampered.
(7) Motive has been clearly established right from the word go, and there has not been any suggestion whatsoever. Regarding the motive to any of the witnesses.
17. Learned Deputy Prosecutor-General relied upon certain cases, to which I shall refer at due place during the course of judgment.
18. I have considered the submissions made by the learned counsel and have also gone through the case law cited at the bar as well as record and proceedings of the trial Court.
19. First contention of the learned counsel for the appellant was that investigation is separate from operation and I.O. Had stated that he arrested the present appellant when he came to the police station. Since he was one who arrested the appellant, it was submitted by the learned counsel, the investigation by him was illegal.
20. First case he relied upon was Dodo v. The State, 2009 YLR 2049. Facts of this case were that complainant Ghulam Hussain Mashori, A.S.-1., posted at CIA, Hyderabad, lodged an F.I.R. And stated that during patrolling with other police officers he apprehended the appellant and recovered from him 27 Kg of charas, at a place about 25 km from the CIA, Centre Hyderabad. After charge was framed, evidence was recorded and accused was convicted. It was contended that the CIA had no authority to conduct investigation on its own. Division Bench of this Court noticed that, " In the instant case admittedly the appellant was not produced before the area police which was 5/6 k.m.
Away from the alleged place of recovery. Instead the officials brought the appellant at the CIA Hyderabad after a travel of 25 kms which shows that on no occasion was the appellant ever produced before the Police Station Umersand with the contraband, in as much as no investigation was ever assigned to any police official of the concerned police station which was a clear violation of the order of the honourable Supreme Court, and then it was concluded, "In the present case the arrest and investigation conducted by the complainant was a clear flouting of the order of the honourable Supreme Court, hence cannot be declared legal. The CIA officials have also violated the provisions of section 166 (1) and (4) of Cr.P.C. And Chapter XXI Rules 25.3 and 25.4 of Police Rules, 1934 as prior to arrest of the applicant he should have informed the area police station and if arrested should have been produced the appellant before the concerned S.H.O." Conviction was consequently set aside.
21. Learned counsel also relied upon Muhammad Hashim v. The State PLD 2004 SC 856. It was a case relating to narcotic substances and Supreme Court held that under the Act of 1997 stringent sentences have been provided if offences charged against the accused within any component of section 9 are proved. Therefore, Act of 1997 has to be construed very strictly and the relevant provisions of law dealing with procedure as well as furnishing the proof like report of expert, are to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold regarding as to what quantity was recovered. Learned counsel next relied upon Nazeer Ahmed v. The State PLD 2009 Kar.
191. This was a case under the Control of Narcotic Substances Act, 1997 and it was held by the High Court that by excluding applicability of section 103, Cr.P.C. In narcotic cases, Legislature had not conferred any additional or extra sanctity upon officers of police or such other forces. It was also held that officer who was himself complainant in the case cannot be expected to collect and preserve evidence, which goes against his case because the 1.0. Should not commit himself prematurely to any view of the facts for or against accused person.
22. The above case law indicates that all the three cases were under the Control of Narcotic Substances Act, 1997. In all these cases a particular police officer was the complainant, he apprehended the accused and thereafter conducted investigation. Thus, it was a case in which three roles were combined in one person. He was the complainant, he was the one who apprehended the accused and he was the one to conduct investigation. In the present case, I.O.
Abdul Jabbar is not the first informant because F.I.R. Was lodged by father of the deceased.
1.0. Abdul Jabbar was no where present at the scene of the crime. When the accused, it is stated, appeared at the police station and confessed his guilt, the person at the police station A.S.-I. Aziz was there and it was there that Abdul Jabbar arrested the appellant. Is there any other roie in respect of commission of the crime or being witness to the crime or making any attempt or going out for arresting the accused alleged against the I.O. Answer to all these question is, none. The learned counsel has failed to demonstrate as to what prejudice has been caused to the accused by mere fact that it was I.O. Who arrested the accused when the accused appeared himself at the police station. The case law is clearly distinguishable because in all three cases, the I.O. Was also the linch pin of detection of crime and the complainant.
23. Second contention of the learned counsel was that F.I.R. Lacked material particulars and the complainant improved his statement thereafter. In this connection learned counsel submitted that in the F.I.R. It was stated by the complainant that Jawaid informed him about death of his son Jawaid was not presented as a witness at the time of incident. Similarly P.W.1, in his statement had mentioned that Shad Yaqoob and Ghulam Haider were friends of deceased and were present at the time of incident. Shad Yaqoob had not been produced as witness. Ghulam Haider's name was not mentioned in the F.I.R.. Therefore inclusion of his name was an improvement the learned counsel contended. Same was the position regarding witness Ghulam Muhammad. Learned counsel first of all relied upon Daniel Boyd (Muslim Name as Saifullah) and another v. The State 1992 SCM R 196. In this case it was held that F.I.R. Of the occurrence is the foundation of the case but if in the light of evidence, it was found that first informant had contradicted his version or F.I.R.
Suffered from material particulars, his evidence would lose its evidentiary worth and value. He also relied upon Dr. Khalid Moin and others v. The State and others 2006 PCr.LJ 639. It was held in this case that if complainant had knowledge of the facts but did not disclose them in the F.I.R., at least major and important points which were required to be discussed, statement of such complainant would not be reliable. He further relied upon Khalid Javed and another v. The State 2003 SCM R 1419.
It was held that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with F.I.R. Nor read as part of the same and the value of the supplementary statement therefore will be determined keeping in view the principles enunciated by the superior Courts in this behalf. It was further held that value of such statement was not more than a statement under section 161 Cr.P.C. In respect of evidence of witness it was held that evidence of chance witness would be acceptable subject to establishing his presence at the place of incident and when no corroborative evidence was available to support version of a chance witness the same had to be excluded from consideration.
24. Learned counsel also relied upon Ibrar Hussain and others v. The State and another 2007 SCM R
605. It was held by the Supreme Court as under:-- "We have considered the submissions made by learned counsel for the parties and perused the record. It is an admitted fact that in case the contents of the F.I.R., statement of the victim dated 5- 9-2002, contents of the complaint and her statement before the Court are put in a juxtaposition then it is crystal clear that her statements are not in consonance with each other coupled with the fact that there were contradictions, discrepancies, improvements and omissions on material points. It is a settled law that person making contradictory statements cannot be held worthy of credence as law laid down by this court in Muhammad Shafique Ahmad's case PLD 1986 SC 471. It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness."
' It may be relevant to point out that the victim had initially reported the matter to police on 15-7- 2002 alleging that she was abducted by Muhammad Siddique on pistol point who allegedly took her on his bicycle to Godar Chowk and thereafter she was taken by force in a car by there unknown persons. It was alleged that Zina-bil-Jabr was committed upon her turn by turn. Supreme Court noticed that it also came in evidence that her brother witnessed kidnapping but did not report to the police.
25. Reliance was placed by learned counsel upon Akhtar Ali and others v. The State 2008 SCM R 6. It was held that supplementary statement of complainant could not be equated with F.I.R. And it would be treated only as statement of witness under Section 161, Cr.P.C. Reliance was also placed on Akhtar Ali and others v. ,The State 2008 SCM R 6. It was held as under:- "When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness."
' It may be noted that in this case in the F.I.R. Name of the accused was not mentioned. It was stated that four unknown persons had committed the offence and the accused was nominated in the supplementary statement.
26. Lastly the learned counsel relied upon Muhammad Pervez and others v. The State and others 2007 SCM R 670. It was held that a person making improvements could not be held worthy of credence.
27. In the present case, complainant is father of the deceased. He is not witness to the incident. All that he stated in the F.I.R. Was that when he came to his house he came to know through his friend Younus that his son had been murdered and his dead body was lying in Civil Hospital. He reached the mortuary and found dead body of his son. Then he stated that his relative Jawaid told him that he saw the present appellant who was in a worried condition and then he went to the house of the appellant and there he saw rush of people. Even Jawaid is not a witness of the incident. It is not stated in the F.I.R. That Jawaid informed him that he along with so and so saw the incident. He has not improved this statement in any material aspect in his further stated under section 154, Cr.P.C.
P.W.1 stated in his evidence that Shad Yaqoob and Ghulam Haider being friends of the deceased were present with the deceased at the time of incident. There is no doubt that this fact was not stated by him in the F.I.R. But the F.I.R. Was lodged by him when he was informed by his friend that his son had been murdered. Therefore Shad Yaqoob and Ghulam Haider being present with his son must have been discovered by him subsequent to lodging of the F.I.R.. Ghulam Haider has come as witness, his evidence must be independently appraised to see whether it inspires confidence or not but mere fact that father of the deceased had not named Ghulam Haider at the time of lodgment of F.I.R., in the circumstances, cannot be said to be an improvisation.
28. Learned counsel also stated that recovery of the weapon of crime is doubtful because the I.O.
Stated that Chhuri was recovered from house of the appellant whereas Police Constable Rahman Shah stated that it was recovered from the person of the appellant at police station. What is the evidence regarding recovery of the crime weapon? I.O. Abdul Jabbar in his evidence stated that he along with S.-I. Aziz, Inspector Khalid and accused went to the place of incident. S.-I. Aziz was sent to the hospital for completion of formalities under section 174, Cr.P.C. I.O. Stated that he recovered Chhuri from his house. He produced mashirnama of recovery (Exh: 11) and stated that it bore his signature. He also identified the Chhuri lying in Court. He also stated that from the place of incident he recovered blood stained earth and shirt of the deceased which was also blood stained. He produced mashirnama in this regard. Exh. 11 being mashirnama of recovery of the crime weapon states that Abdul Jabbar along with Inspector Khalid Jawaid and S.-I. Abdul Aziz went in official mobile and on pointation of the accused reached at KPT flats, near KPT Ground, Keamari, Karachi.
The accused himself led ahead, entered into his house and opposite to main door produced one Chhuri which was blood stained. It was taken into police possession and was duly sealed at the spot. It is signed by witness Imran Shah and Inspector Khalid Jawaid of the police station as witnesses. Khalid Jawaid also appeared as a witness (P.W.2) and he deposed regarding the recovery of the crime weapon. No question whatsoever was asked from this witness as to whether and how the alleged crime weapon was recovered. P.W. Rehman Shah appeared as P.W.6. He is not a witness to the recovery. He is only witness to the seizure memo. Of the clothes of the deceased.
His evidence was recorded on 16-3-2005 whereas the incident occurred on 6-7-2002. If a simple police constable who is not even a Mashir of recovery of crime weapon but is only a Mashir of recovery of clothes which are blood stained makes a statement in respect of recovery of .Crime weapon it cannot set at nought evidence of I.O. As well as mashir of recovery. If the amount of credence that learned counsel wants to place at evidence P.C. Rehman Shah is taken without a pinch of salt then at least blood stained clothes of the appellant and appearance of the appellant at police station on his own and his confession would stand established beyond any shadow of any reasonable doubt therefore, in my opinion the recovery of the alleged crime weapon has been proved beyond any shadow of reasonable doubt.
29. Next contention of the learned counsel for the appellant was that medical evidence was doubtful because it was merely .Stated that there was a wound on the chest and a wound on the renal area which were both cavity deep. Learned counsel submitted that no rib cut has been specified and depth of wound in the lung has not been specified. He further submitted that depth of wound of kidney is also not specified. Lastly on this point the learned counsel submitted that there is another discrepancy in the medical evidence; although it is alleged that same Chhuri was used but it is stated that one wound was 4 cm X 2 cm on chest and other 4 cm x 1.0 cm in the renal area. Learned A.P.-G. In response submitted that no suggestion was asked from doctor regarding any injury to the bone or ribcage and no suggestion was made to him regarding any ill will on his part towards the appellant. He submitted that medical evidence has not been challenged and no question in this regard has been asked in cross- examination of the doctor.
30. The medical witnesses are Dr. Lmran, who appeared as P.W.9 and Dr. Abdul Haq who conducted postmortem and appeared as P.W.8. He stated about the injuries. He also stated that lung was found ruptured and left chest cavity was found full of blood. In respect of the injury on the renal area it was stated that kidney was found ruptured. He was duly cross-examined and all that was asked in the cross-examination is as under:-- "It is correct that after about two or three hours of the death I prepared said postmortem. It is correct that death was occurred due to heavy blood lost injuries. I cannot say that if injured immediately brought at hospital or in time after his treatment his life could be saved. I have stated that injuries received by deceased on his front and back side. It is correct that I have not reserved kidney for viceras. I have not sent kidney to ascertain the real cause of death or to take any opinion.
It is incorrect that on my presumption I ,have given cause of death in the postmortem report. It is incorrect that I have not prepared postmortem report and whatever mentioned just on my presumption."
31. Therefore, APG is clearly correct in contending that no question whatsoever has been asked in the cross-examination from the doctors. Their evidence has been firm and unshaken on the point that there were two principal injuries, one on the chest, cavity deep and other on the renal area, also cavity deep. Evidence is unshaken that lung was ruptured and so also was kidney. Evidence has also remained unshaken that death occurred due to these two injuries and loss of blood. There was no suggestion whatsoever of any poisoning or any other cause of death. Therefore if kidney was not sent to Chemical Examiner or samples were sent to Chemical Examiner it would not be create a doubt on the fact that the deceased was killed because of these two injuries. Since injury in the chest was cavity deep and there was no report whatsoever of any rib being cut or fractured or otherwise affected the contention that one injury 4 cm x 2 cm and other is 4 cm x 1.0 cm would be readily explainable. In this case one wound was of entry in the place between two ribs and in other case it was through soft muscles in the renal area.
32. Learned counsel has referred to some minor contradictions such as who prepared the inquest report, P.W.5 Syed Shah had mentioned one injury on the chest and not mentioned other injury, there is discordance as to who arrested the accused or that there is no evidence as to where the shirt of the deceased to go.
33. Learned counsel relied upon Abdul Hague v. The State and another PLD 1996 SC 1. It was held that general principle was that it was for prosecution to prove the case against the accused beyond doubt and such burden does not shift from prosecution even if accused takes up any particular plea and fails in it. It was further held that if there is any room for benefit of doubt it will go to the accused and not to prosecution. Learned counsel also relied upon Nasir Ahmad v. The State 2003 YLR 2457. Facts of this case were that the complainant stated that he was present in his house when he was called by one Rana Shukat Ali. The complainant went out of his house and was busy in talking with Rana Shaukat Ali and two persons were sitting in an open place in front of the house. Third person brought beverages and the said two persons started drinking when Nasir Ahmed armed with pistol along with his co-accused who was empty handed and who raised a Lalkara. Nasir Ahmed fired which hit Shahid Nawaz on his chest and second shot fired by Nasir Ahmed hit on the left eyebrow of Shahid. The injured fell down on the ground. Thereafter Nasir Ahmed fired four shots which hit on right side of waist of Shahid who was lying prone on the ground.. F.I.R. Was lodged promptly, within half an hour of the incident. Number of F.I.R. Was not mentioned in the inquest report. High Court held that this showed F.I.R. Was registered after due deliberation and consultation. Had the F.I.R. Been registered prior to preparation of the inquest report, number of F.I.R. Must have been stated in the inquest report. He further relied upon Haroon Rasheed and 6 others v. The State 2005 SCM R 1568. It was held that material discrepancies alone which come in conflict with the material probabilities and militate against credibility of witnesses, justify rejection of testimony. Learned counsel next relied upon Atta Muhammad v. The State 2009 PCr.LJ 590. It was held that unexplained delay of 2/3 days in recording the statements of witnesses by the Investigating Officer had also adversely affected the veracity of the witnesses. Lastly learned counsel relied upon Koli Trikam Jivraj and another v. The State of Gujarat AIR 1969 Gujarat 69. With reference to the provisions contained in Section 18 of the Evidence Act, (1872), it was held as under:- - "Suggestions put in cross examination are no evidence at all against the accused and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross examination of a prosecution witness. (Para 15)
' Therefore, the accused is entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea of defence which his lawyer pats forward must bind the accused. The reason is that in a criminal case a lawyer appears to defend the accused and has no implied authority .To make admissions against his client during the progress of the litigation either for the purpose of dispensing with proof at the trial or incidentally as to any facts of the case. It is, therefore, evident that role that a defence lawyer plays in a criminal trial is that of assisting the accused in defending his case. The lawyer has no implied authority to admit the guilt or facts incriminating the accused.
AIR 1936 Rang 1, Rel. On. (Para 16)
' There is another principle which is equally to be borne in mind that suggestions made in the cross examination of prosecution witnesses cannot be used to fill in the gaps in the evidence of prosecution. Burden lies on the prosecution to prove the guilt of the accused. Such suggestions in any case cannot stand higher than the statement of the accused under section 342 of the Criminal P.C."
34. None of the discrepancies pointed out by the learned counsel are material in any sense which can dislodge the case of the prosecution. As far as, inquest report is concerned, the aspects of the evidence which have not been challenged at all are firstly, when the F.I.R. Was lodged dead body had already been shifted to the hospital and secondly inquest report was prepared at the hospital and thirdly it was prepared after registration of the F.I.R. F.I.R. Was registered at 1830 hours whereas incident occured at 1330 hours, that to say that F.I.R. Was registered five hours after the incident.
Therefore, if officer asks any other officer to write the report and subsequently gives statement that he wrote the report while both officers were present at the time, it would not create doubt regarding story of the prosecution. Similarly P.W.5, Syed Shah in his evidence stated that he, saw Saeed-ur-Rehman gave Chhuri blow to the deceased on his chest and thereafter he went away. It was an incident in which a number of persons were there. In the cross-examination it was stated that two were fighting with each other. There are two injuries on the dead body. Therefore, it is minor discrepancy which does not dislodge the story of the prosecution. I.O. Abdul Jabber and Inspector Abdul Aziz both have stated that accused appeared at the police station and was arrested there. Although P.W. 7, Rayasat Ali stated that on that day Inspector Abdul Jabbar has brought accused to the police station in presence of two witnesses clearly stating and the third witness confirming that the accused was wearing Shalwar Kameez which was stained with blood, the minor contradiction does not dislodge story of the prosecution.
35. The roman maxim falsus in uno falsus in omni bus is not applicable to criminal proceedings in Pakistan therefore, the mere fact that witness has while supporting main story such as Rayasat Ali regarding coming of the accused to the police station and surrendering himself, but stating that Abdul Jabbar brought him or Syed Shah stating that accused came to police station with blood stains and apart from his clothes Chhuri was recovered from him does not affect evidence as to a key part of the incident. Reference may be made to Sarfraz alias Sappi and 2 others v. The State 2000 SCM R 1758. Law was laid down by the Supreme Court in this case in the following words:- "The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omni bus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i,e, sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502, Tawaib Khan and another v. The State PLD 1970 SC 13, Bakka v. The State 1977 SCM R 150, Khairu and another v. The State 1981 SCM R 1136; Ziaullah v. The State 1993 SCM R 155, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, Shaid Raza and another v. State 1992 SCM R 1647, Irshad Ahmad and others v. State and others PLD 1996 SC 138 and Ahmad Khan v. The State 1990 SCM R 803. Thus, applying above test of appreciation of evidence to instant case we are inclined to hold that the evidence furnished by P.W. Ahmad Khan and P.W. Sakhawat Hussain has been rightly considered to be true coupled with strong corroboration available on record."
36. The complainant in this case is father of the deceased. It would not be difficult to imagine degree of grief of the complainant. It is highly improbable that a father would substitute some one else in place of actual H murderer of his young son while dead body of his son is still lying on a hard, hospital stretcher and is yet to be buried.
37. Learned A.P.G. Relied upon Khalid Saifullah v. The State 2008 SCM R 688. Facts of this case were that brother-in-law of the deceased lady stated that on the fateful day while he was going towards his house and when he reached near house of his father-in-law he heard some noise. In order to satisfy his curiosity, he entered the house and saw the petitioner giving Chhuri blows to his wife. P.WD. 2 and 3 also reached there at that time. On seeing them accused ran away. His co- accused holding gun in his hand gave a Lalkara that no one can stop them. The Supreme Court observed as under:-- "8. The complainant being close relative (Humzulf of the petitioner) had no reason to falsely implicate the petitioner in the commission of the offence substituting him, letting off the real culprits. There is no such material available on record which would indicate substitution of the petitioner in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others PLD 1996 SC 138. The petitioner has not been able to establish any animosity of the complainant or the police for his false involvement in the case."
38. On the question of concordance between ocular evidence and medical evidence, the Supreme Court held as under:-- "9. The medical evidence produced by the prosecution in the case proved that the deceased had received injuries with sharp edged weapon on the vital parts of her body and was taken to hospital where she was operated but she succumbed to the injuries. The medical evidence fully supports the ocular account.
11. The ocular account corroborated by the medical evidence supported by the recovery of weapon of offence, blood stained earth and the last worn clothes of the deceased are sufficient to infer that the prosecution has been successful to bring home the guilt of the petitioner to the hilt."
39. He next relied upon Farooq Khan v. The State 2008 SCM R 917. The Court in this case looked at the difference between natural witness and an interested witness and held as under:-- "11. P.W.8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or had previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set in Nazir v. The State PLD 1962 SC 269 and Shehruddin v. Allhaj Rakhio 1989 SCM R 1461."
40. He lastly relied upon Wazir Gul v. The State, PLD 1995 Kar.112. On the question of recovery of weapon it was held by the High Court as under:-- "The next question for determination is recovery of weapon used in commission of the crime i,e, knife and the recovery of blood stained clothes of the accused. The said articles were recovered by the police at the time the accused appeared at police station at 5-00 hours and got the F.I.R.
Registered. The Investigating Officer at the time of registration of F.I.R. Had recovered the blood stained knife and also the blood stained clothes from the person of the accused. He has made such note at the foot of the F.I.R. (Exh.18). P.W. Muhammad Sarwar, Mashir has fully supported the.
Investigating Officer. The learned counsel for appellant has argued that this witness who is police constable could not be a reliable witness; and that efforts should have been made to secure an independent witness. It may be kept in mind that the accused had surrendered at the police station where there could be no independent witness at such odd hours of 5 a.m. Even. Otherwise there is no bar to a police officer being a witness in the case unless mafa fides are shown and proved against him which are lacking in the present case. From this evidence the recovery of the knife and blood stained clothes stand proved. This knife and blood stained clothes were sent for examination to Dr. Abdul Hadi Khan Sherwani, the Chemical Examiner. His report is positive.
Accordingly, we are of the view that the recovery also stands proved by the prosecution. It is also established that the size of the blade of the knife used in commission of offence is over four inches."
41. I may say something about motive also. Motive has been stated right from the word 'go', deceased was married with niece of the appellant and niece of the appellant had left her husband's house and was living with the deceased. There had been altercations between deceased and the appellant over such domestic affairs. This motive has not been questioned at all either through the cross-examination of any of the witnesses or even in statement under section 342, Cr.P.C. Strained relationship between deceased/husband and his wife/niece of the present appellant have been stated right from the word 'go' and have not been denied or suggested to be false at any stage. Given the socio cultural milieu of Pakhtoon society the sense of outrage of an uncle over maltreatment of his niece, with the prospects of marriage unraveling, it would be most difficult to exaggerate. Therefore, as far as, motive in this case is concerned that is clearly established.
42. The incident took place outside house of the present appellant. All witnesses are one as far as this aspect is concerned. P.W.1 and P.W.2 are not the eye-witnesses. Therefore as far as actual commission of crime is concerned their evidence does not establish it. Eye-witnesses of the incident are first, Ghulam Muhammad P.W.4. He stated that he saw the appellant fighting with the deceased and that the appellant was armed with Chhuri and was causing Chhuri injuries to the deceased. Deceased fell down and the appellant giving threats fled away. Second witness is Syed Shah. He stated that when he heard commotion he went outside and saw the, appellant and deceased fighting with each other and he saw the appellant giving Chhuri blows to the deceased on his chest. These are two eye-witnesses. It was contended by the learned counsel for the appellant that evidence has come that deceased and the appellant were fighting with each other.
His contention was that since it was a fight even if the entire story of prosecution is believed, act of the appellant would be in self defence. If two persons are fighting with each other and one person is armed with knife, in normal course of human events Chhuri shall become available only when one comes out of the house with the purpose. No suggestion has been made to any witness that "deceased had given any blow ever to the appellant. Therefore, if it was a fight it was a one way fight, one was attacking and the other was trying to fend the attack. Moreover self defence was suggested for the first time when the last witness Investigation Officer appeared .No suggestion in this regard was made either to the complainant or to any of the eyewitnesses of the incident. Both the witnesses who saw the incident have remained unshaken regarding the incident and therefore the case of prosecution against the appellant is proved beyond a shadow of reasonable doubt.
43. I therefore, see no reason to disagree with the conclusion arrived at by the Court below.
Consequently, this appeal is dismissed.