1. MUNAWAR ALI KHAN, J.-By this appeal the appellant Javed Ahmed has called in question the judgment of Second Additional Sessions Judge, Sukkur dated 25th January, 1983 whereby the appellant has been convicted under section 302, P. P. C. And sentenced to death.
2. The learned trial Judge has also made reference for confirmation of the death sentence awarded to the appellant by the said Court. Both the appeal and the reference were disposed of by short order dated 17th November, 1983 for reasons to be recorded afterwards. According to the said order the sentence was reduced to life imprisonment and subject to this modification in the sentence the appeal was dismissed and the reference was rejected. Following are the reasons for the aforesaid short order.
3. The appellant Javed Ahmed was tried for the murder of Bashir Ahmed, brother of complainant Muhammad Sadiq. On 21st July, 1980 at 12 00 noon the deceased who was sitting with his brother Muhammad Sadiq and one Nazeer at their hotel known as 'Hyderi Hotel' near the Shalimar Cinema left for old Sukkur to attend to his personal work. As soon as he came in front of the hotel of Gaman near the WAPDA House, he was challenged by the appellant that he would not be spared. The three other persons accompanied the appellant at that time. It is alleged that the appellant who was having revolver fired at the deceased, hitting him on his back. The deceased ran towards the nearby mosque when the appellant fired his revolver again at him as a result of which he fell down near the mosque. As disclosed in the F. I. R., the names of the three persons accompanying the appellant Saved Ahmed were Bashir Khoso, Miro Khoso and Muhammad Tariq. The complainant and P. W. Nazeer Ahmed pursued the assailants. So, did Gaman who was sitting at his hotel at the time of occurrence. They however gave up the chase, seeing the accused and his companions armed with weapons. However, when they went over to the deceased, he told them that accused Javed Ahmed had taken revenge of old enmity existing between them. One passerby, Kishan Chand was also hit by shot fired by the accused. After the accused ran away towards the railway track, both the injured were removed to the hospital. However, the deceased breathed his last on the way. After leaving the injured Kishan Chand and the dead body of Bashir Ahmed at the hospital, the complainant dashed to the Police Station 'C' section Sukkur and lodged F.I. R. There.
4. The S. H.O. Nazeer Ahmed after recording the F. I. R. (Exli. 7) at 12-15 p.m. Proceeded to the Civil Hospital where he saw the injuries on the person of Kishan Chand in presence of mashirs Sher Muhammad and Ahmed and prwared mashirnama (Exh. 14). He also drew up inquest report of the dead body of Bashir Ahmed (Exh. 16) in presence of the same mashirs Thereafter the S. H. 0, inspected the scene of offence whence he secured blood-stained earth and two empties under the memo. (Exh. 17). The S. H.O. Also recorded statements of Gaman Khan and Nazeer. On 10th October, 1980 the accused was arrested by him in presence of mashirs Allah Rakhio and P. C.
5. Qurban under memo. (Exh. 18). On the following day the accused in course of his interrogation showed his willingness to produce pistol and one live cartridge. He led the police to his house and in presence of mashirs Habibullah and Muhammad Ali took out pistol and one live cartridge from his house and produced the same before the S. H.O. The said articles were secured by the S. H.O.
6. Under memo. (Exh. 19). On his return to the police station, the S. H.O. Registered a separate case against the accused under section 13-D, Arms Ordinance. On 6th November, 1980 the accused was placed on trial.
7. Dr. Imam Bux (Exh. 6) of the Civil Hospital, Sukkur had examined the injuries of Kishan Chand and performed the autopsy on the dead body of Bashir Ahmed. As disclosed in his evidence, he found one injury on the person of Kishan Chand which he has described as "lacerated penetrating wound of entry on the back of chest, just below the neck of the size about 1 cm x I cm diameter." According to the doctor this injury was simple in nature and was Caused by fire-arm. In course of the post- mortem examination of the dead body of the deceased Bashir Ahmed the doctor discovered the following injuries :-
(1) 2 lacerated penetrating wounds of entry on the left shoulder along-with charing and blackening.
(2) Three wounds of entry on the back size was I cm x 1 cm each.
(3) A lacerated penetrating wound of entry on the left upper arm size was 1 cm x 1 cm.
(4) A lacerated penetrating wound of entry on the back of waist size was 1 cm X 1 cm.
8. The above injuries were certified by the doctor to be ante-mortem and caused by fire-arm. In his opinion the death of the deceased resulted from severe bleeding and shock produced by the above injuries. He further opined that all the injuries were individually as well as collectively sufficient to cause death in ordinary course of nature. Thus from the medical evidence it is proved that deceased died of the injuries found o his person and further that solitary injury found on the body of Kisha Chand was caused by fire-arm. The accused has not controverted the truth of the medical evidence.
9. The material point for determination is if the accused was author of the injuries found on the persons of the deceased and Kishan Chand. To prove his complicity, the prosecution have relied upon ocular evidence, dying declaration, evidence of motive and recovery of. Incriminating articles.
10. We would first take up the ocular evidence which has been furnished by complainant Muhammad Sadiq (P. W. 1) Kishan Chand (P. W. 2), and Gaman Khan (P. W. 3). It is stated by the complainant in his evidence that he and his brother Bashir Ahmed were standing out side their hotel near Shalimar Cinema when Bashir Ahmed left for Old Sukkur. According to him Nazeer Ahmed was also standing with them at that time. His evidence further shows that the deceased hardly reached the shop of Gaman Khan when the accused Javed accompanied by three others all armed with revolvers appeared. He further saw that the accused Javed threw challenge at the deceased telling him that as some score was to be settled with him, he would not be spared. He has further stated that after saying so the accused Javed fired from his revolver at the deceased who tried to run but fell down near the mosque. The complainant also saw Kishan Chand being hit by revolver shot.
11. The complainant is fully supported by P. W. Gaman Khan who has stated in his evidence that while he was sitting at his shop he saw deceased going towards Old Sukkur and that as soon as the deceased reached his shop the accused Javed who had revolver challenged him that he would not be spared. This witness has gone further to say that he saw accused Javed firing revolver at the deceased who was hit by the shot on his back. He also saw three persons accompanying the accused but he could not identify them. He has also confirmed that Kishan Chand was hit by the revolver shot, though he could not say who fired at him.
12. According to third eye-witness, Kishan Chand he was returning from his duty when he received a bullet injury from his back at Alsahra Hotel. His evidence shows that after he had received the injuries he was removed to the hospital where he remained as indoor patient for 20 days. He has however not stated whose shot had caused him injuries.
13. The learned counsel for the appellant has assailed the evidence of the above eye-witnesses, contending that none of them was present at the time of occurrence and hence their evidence was unreliable. As for the complainant be has submitted that he is related to the deceased and that his evidence is in conflict with his earlier version in the F. I. R. The learned counsel has doubted the presence of Gaman on the basis of the Tapedar's statement that Gaman has no shop at the vardat. He has further averred that the prosecution has not examined either of the mashirs of the vardat and as such the existence of the pardat falls short of proof.
14. First of all we would like to dispose the objection of the learned counsel as regards non- examination of the mashirs of vardat. In this connection we may reproduce the relevant portion of the statement of S. H.O. Nazeer Ahmed (P. W. 5). It reads as under :- Thereafter, I proceeded to the vardat and it was pointed out by the complainant. Such mashirnama was prepared. The vardat was situated near Shalimar Cinema Sukkur. I produce the same as Exh.
17. I also recovered two empty cartridges and the bloodstained earth from the vardat.
15. Both were secured and sealed and such mashirnama was prepared."
16. It is clear from the above statement of the S. H.O. That he had visited the place of occurrence which was shown to him by the complainant. It also appears from the statement that the vardat situated near the Shalimar Cinema and that the blood-stained earth and two empties were secured by the S. H.O. From the said place. His statement is fully corroborated by the mashirnama (Exh. 17).
17. According to the S. H.O. He inspected the vardat in presence of mashirs Sher Muhammad and Ahmed. No doubt, A. P. P. (Abdul Razak Akhund) incharge of the prosecution case in the trial Court gave up mashir Sher Muhammad vide his statement (Exh. 26). He also appears to have closed the prosecution side without examining the other mashir Ahmed. Thus, the prosecution were deprived of the benefit of the evidence of both the mashirs. But in our opinion non-examination of the mashirs would not affect the truth of the prosecution nor for that reason the existence of the vardat would be held to have not been established. As stated above the vardat has been proved not only by S. H.O. Nazeer Ahmed but also by aforesaid eye-witnesses. We asked B the learned counsel for the appellant to show us any provision of law which makes it obligatory on the prosecution to examine mashirs of the scene of offence so that default in that behalf would amount to illegality adversely affecting the prosecution case. The learned counsel was unable to satisfy us in this regard. Accordingly his contention that in absence of the evidence of the mashirs of the vardat, the existence of the vardat has not been proved has no force.
18. Coming to the learned counsel's next contention that complainant being brother of the deceased his evidence is not trustworthy, it may be stated that his mere relationship with the deceased will be no ground to discard his evidence. On perusal of the statement of the accused under section 342, Cr. P. C. (Exh. 30), it is revealed that he has attributed no motive to the complainant for giving false evidence. All that he has stated is that the witnesses are interested. It would appear that th accused was represented by a counsel in trial Court and the complainan was even subject to a lengthy cross-examination. But nothing was brough out from the complainant to indicate that his evidence was motivated by any consideration. The only suggestion made to him in cross- examination was that he has given evidence at the instance of police. There is no material to show that the complainant has been in any manner under the influence of the police so much so that he would not hesitate to involve an innocent person in the murder charge at behest of the police. We cannot believe that even police would be interested in false implication of the accused without any motive. The learned counsel has not been able to show any such motive on the part of the police.
19. From the question put to the complainant in cross-examination it is apparent that he has a hotel at the vardat. Accordingly his presence at the time of occurrence cannot be doubted. He appears to us a natural witness whose evidence can be safely relied upon. It is true that some contradictions have appeared in the evidence of the complainant. The first contradiction pointed out by the learned counsel for the accused is that in the F. I. R., apart from the accused, the complainant has given the names of his three companions who were with him at the time of occurrence whereas in his statement in Court he has gone back on his earlier version and has stated that the faces of the accused's companions were muffled.
20. The next inconsistency appearing in the complainant's statement is about the motive. In the F. I. R.
21. He has stated that two years prior to the occurrence the accused had filed an injury case against him and his deceased brother. He has further stated that two days after filing of that case the deceased too filed a case against the accused party. Due to these cases, according to him, the relations between the parties got strained but subsequently when the accused party brought Holy Qur'an they patched up their differences. However, in Court his evidence is different on the point of motive. In Court he has stated that the accused used to take meals at their hotel without making payment which was not liked by his deceased brother. He has further stated that one day the deceased had been taken away (by accused party) and administered intoxicating tablets whereupon they wanted to lodge report with police but somehow they were prohibited by the accused party from doing so. Despite the pressure of the accused a case was however filed against them. It would appear that no reference has been made by him to the two injuries cases the parties had filed against each other in his statement in Court. From his conflicting versions about motive it is difficult to arrive at a definite conclusion as to what was the root cause of the deceased's murder. What was the immediate reason which prompted the accused to take such a extreme step is a shrouded mystery. Nevertheless we are convinced that the relations between the parties were far from satisfactory at the time of occurrence. The conflicting statement with regard to motive cannot be held to render the evidence of the complainant doubtful. He seems to have made changing statements in his zeal to make his case strong. Despite the said discrepancies, the learned counsel for the accused has not satisfied us why after all the complainant would give false evidence against an innocent person.
22. The complainant's evidence is corroborated by P. W. Gaman. Manifestly he is an independent witness having no connection with either of the parties. His presence at the vardat cannot be doubted. However, as stated above the learned counsel for the appellant has contended that in view of the Tapedar's statement presence of Gaman at the time of occurrence was doubtful. This argument is obviously without force. It would appear from the sketch prepared by the Tapedar that he himself has indicated Gaman's shop in the sketch showing it to be situated at a distance of 17 feet from the place where deceased had died. Even otherwise the Tapedar's statement with regard to the situation of the Gaman's shop cannot be given much importance in view of the fact that he had visited the vardat nearly two years after the incident. Therefore, possibility cannot be ruled out that the shop of Gaman might have disappeared during the intervening period. That would not mean that the shop did not exist even at the time of occurrence. Moreover, we see no justification to give preference to the Tapedar's word over the evidence of other witnesses in this regard. The Gaman's shop finds mention even in the mashirnama of vardat (Exh. 17), prepared by the S. H.O.
23. Nazeer Ahmed on the very day of occurrence. We have, therefore, no doubt that Gaman's shop situated at the vardat at the time of occurrence and as has been stated by him he had witnessed the incident from his shop.
24. At this stage we may refer to the authorities relied upon by the learned counsel for the accused to show that the evidence of the complainant cannot be relied upon in respect of the accused when he be exhonerated his three companions whom he had implicated in his earlier statement in F. I. R.
25. The first case on which reliance has been placed is of Abdul Rehman and others v. The State wherein the view taken by the Supreme Court was that if two eye-witnesses were found to have falsely implicated three co-accused, their testimony qua-guilt of the two appellants required independent corroboration as to the participation in the occurrence.
26. The next case on the same point relied upon by the learned counsel for the accused is of Rashid Ahmed v. The State wherein it was held :- "It is a well-established rule of prudence that when prosecution witnesses are discredited in respect of majority of the accused, it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corroboration in respect of such accused."
27. From the above two cases it appears that the evidence of eye-witnesses was disbelieved in respect of some of the accused who were consequently acquitted. ' It was, therefore, held that the same evidence of eye-witnesses could not be relied upon for purpose of convicting the other accused without independent corroboration. However, that is not the case here. In the instant case none of the accused has been acquitted on the evidence of aforesaid eye-witnesses. Therefore, the question of disbelieving the said eye-witnesses in respect of any such acquitted accused did not arise. The above authorities are, therefore, not attracted in the instant case. Even otherwise it was explained by the complainant that he had not given the names of the accused's companions even in the F. I. R. However, he could not say what police had actually written in the F. I. R. It is clear from the evidence on record that the three persons who are stated to have accompanied the accused have not participated in the fight. That is precisely the reason that they have not been implicated by the eyewitnesses. On the other hand reference may be made to the case of Ghulam Muhammad and others v. The State wherein it was held :- "It may add here that none of the two Courts having found that the evidence of the eye-witness implicating the seven acquitted accused were false, a mere disregard of that part of the evidence of the witnesses that implicated the seven accused as a matter of prudence, did not in any manner affect their evidence with regard to the three appellants before us."
28. It is clear from the above authority that even though some of the accused implicated by the eye- witnesses were acquitted, yet his evidence with regard to the convicts was held to have remained unaffected. Accordingly the evidence of the complainant and Gaman cannot be doubted merely because they have stated that the accused was accompanied by three other persons who have not been challaned.
29. Both the complainant and Gaman have also proved dying declaration of the deceased. The complainant's statement in this connection is: "When we went over the deceased Bashir Ahmed who informed us that accused Javed has taken revenge".
30. Gaman has proved the dying declaration in these terms : "The injured was also in senses at that time and had stated that he was attacked by the accused Javed and his person due to enmity".1 2 3 The learned counsel for the appellant has submitted that the evidence of above witnesses cannot be believed in respect of dying declaration for the simple reason that after having received the kind of injuries found on the deceased's person he could not be in a position to speak to the witnesses In other words the argument of the learned counsel was that the death of the deceased was instantaneous and as such the question of his having given dying declaration to the witnesses did not arise. In support of his argument the learned counsel made reference to the medical evidence which of course shows that death had been instantaneous. On the other hand the learned counsel for the respondent has strongly urged that looking to the nature and location of the injures it was quite possible that the deceased would remain alive and in full senses for some time after receiving of the injuries. It was further submitted by the learned counsel for the respondent that in case of conflict between the medical evidence and ocular evidence, it is not always necessary to give preference to the medical evidence. In this connection reference has been made to the case of Jaffar v. The State wherein it was held :- "No doubt, generally the evidence of the doctor is considered to be independent and more reliable and in case of conflict can be given preference over the ocular evidence but this is not always true as there are always exceptions to it and there can be cases where ocular evidence can be given preference over the medical evidence. No generalization is possible in this behalf. Each case depends upon its own facts and ultimately it is the duty of the Court while assessing the entire evidence available on the record to decide whether the medical evidence is more reliable or the ocular one. The statement of the doctor stands on the same footing as that of any other witness and may or may not he accepted by the Court."
31. In the instant case as has been stated above both the complainant and Gaman have been relied upon as truthful witnesses. Unless the deceased had told them that accused Javed had caused injuries to him, we see no reason why these witnesses should indulge in falsehood. The opinion of the medical officer that the death of the deceased was instantaneous is not supported by any reason. On the contrary it appears that the injuries received by the deceased were located neither on the head nor in the heart. Two of the injuries were on the left shoulder and left upper arm and the remaining two were on the back of the waist. In these circumstances we are inclined to feel that the deceased could have spoken to the above eyewitnesses telling them that the accused was the author of his injuries.
32. The next piece of evidence relied upon by the prosecution is the recovery of incriminating articles.
33. The S. H. O. Nazeer Ahmed while inspecting the place of occurrence had secured from that place bloodstained earth and two empties in presence of mashirs Sher Muhammad and Ahmed. No doubt both the mashirs have not been examined but that is no reason to disbelieve the said recovery. As pointed out above the recovery of the blood-stained earth and two empties from the vardat has been proved by the evidence of the S. H.O. Who is further corroborated by mashirnama (Exh. 17). The learned counsel for the appellant submitted that non-examination of the mashirs would raise an inference that had they been produced in the evidence they would not have supported the prosecution case. In this connection he relied upon the case of Shaman and 4 others v. The State . In this case eye-witnesses were not examined and the presumption to the effect that if such witnesses had been examined would not have supported the prosecution case was upheld. The dictum laid down in the above-reported case is unexceptionable. However, as pointed out above the recovery of the blood-stained articles and two empties has been proved by the evidence of the S. H.O. The learned counsel for the appellant averred that since two mashirs of the recovery have not been examined, no reliance can be placed on the solitary word of the S. H.O.
34. We are not impressed by this argument. The consensus of the view taken by the superior Courts is that the statement of the police officer can be placed at par with the statement of the any other witness unless of course it is shown to the satisfaction of the Court that the police officer is in any4 5 way inimical towards the accused. Reference may be made to the case of Dhani Bux v. The State in which the Division Bench of the this Court took the view that in absence of the allegation of any coercion or maltreatment to the accused against the witness who is a police officer, the testimony of such witness could not be discarded because of his being a police officer.
35. The other case on the same point is of Mir Khan and others v. The State wherein it was held "Merely because the witnesses belong to police force is no reason to disbelieve them.. The reason that police people had been rewarded for having performed a feat of gallantry is also no ground for declaring them as false witnesses."
36. The accused has made no allegation in his statement under section 342, Cr. P. C. Against the S. H.
37. O. Or police in general. ' In absence of such material we have no reason to disbelieve the evidence of S. H.O. With regard to the recovery of blood-stained earth and two empties from the vardat.
38. The evidence of the S. H.O. Further shows that in course of interrogation the accused showed his willingness to produce pistol and one live cartridge. According to him he led the police party to his house and in presence of mashirs Habibullah and Muhammad Ali produced one pistol and one live cartridge from his house. The S. H.O. Secured the said articles under mashirnama (Exh. 19) which also corroborates his evidence.
39. He finds further support from both the mashirs Muhammad Ali (P. W. 7) and Habibullah (P. W. 8).
40. They have affirmed that the accused led the Police Party to his house in Nehal Khoso village and produced the pistol and cartridges from his house before the S. H.O. Although they were cross- examined by the learned counsel for the accused yet nothing was brought out from them to show that their evidence is tainted or unreliable. The learned counsel for the accused however took exception to their having been called as mashirs in violation of the mandatory requirements of section 103, Cr. P. C. In reply to his argument the learned State counsel placed reliance on the case reported as Ahad Sher v. The State , in which the Police Officer was enable to secure the presence of the respectable witnesses. It was held that in such a case strict compliance of provisions of section 103,. Cr. P. C. Was not desirable. In fact the superior Courts have laid emphasis on respectability of the witness. If the Court is convinced that the mashir in whose presence the recovery was made was respectable one and his character was above reapproach, his evidence could not be discarded only on the ground that he did not belong to the locality where the search was conducted. In the instant case the respectability and character of the aforesaid mashirs have not been questioned. Therefore, we see no justification to discard their evidence which has established the recovery of pistol and one live cartridge from the accused's possession.
41. The pistol and live cartridge recovered from the accused and two empties secured from the vardat were admittedly sent to the Ballistic Expert whose report has been placed on record (Exb. 28).
42. According to this report the two empties secured from the vardat were found by the Ballistic Expert to be matching with the test empties fired from the pistol. However, the learned counsel for the appellant raised objection that since the report is not supported by reasons it cannot be relied upon as a piece of corroboration. In this connection he has placed reliance on Shah Muhammad and 3 others v. The State wherein it was held : "Moreover, the Ballistic Expert in his report (Exh. P. T.) that crime empty P. 7 was found wedded with gun P. 5 recovered from appellant Suba has not given reasons for it. He argued that the defect is fatal and is not curable. Section 510, Cr. P. C. Is a provision of convenience and it does not relieve the prosecution of its duty to support the opinion of the Ballistic Expert by reasons for such opinion.
43. In cases where the opinion does not contain reasons prosecution is required to produced the Expert for cross-examination."
44. On perusal of the opinion given by the Ballistic Expert it would be noticed that the opinion is supported by reasons. In support of his finding (opinion) that the empties sent to him matched with the test empties prepared by the expert by firing from the pistol recovered from the accused,6 7 8 9 the expert has stated that when the two sets of empties were compared they exhibited characteristics which were in agreement with each other. Accordingly it cannot be argued that no reason has been in support of the expert's opinion. Of course detailed reasons have not been given in the expert's report nor was it desirable to do so.
45. If the accused was not satisfied with the opinion or he wanted to cross-examine the expert in order to ascertain the renons in detail, he was free to move the Court for summoning of the expert for evidence. In these circumstances it would not be proper to ignore the opinion of the Ballistic Expert.
46. His report lends corroboration to the ocular evidence given by the complainant and Gaman. It has also been contended by the learned counsel for the appellant that no question has been put to the accused with regard to crime empties and as such the ballistic report cannot be used against him.
47. In this connection reference may be made to the Supreme Court authority reported as Allah Dad and 2 others v. The State . In this case accused was represented by counsel and he himself had also heard the entire evidence. When he was questioned about the incriminating gun, he did not state that it did not belong to him. Accused's counsel also did not bring the objection to the notice of the Court. The omission to put a question to the accused about matching of the crime empty was held not to be fatal to the prosecution case, as it did not occasion any failure of justice.
48. Following the above authority we are of the view that in the instant case the omission to put a question about the recovery of the two empties from the vardat was not fatal to the prosecution case.
49. As regards the motive the complainant has no doubt given different versions on different occasions. As stated above his version in the F. I. R on the question of motive is entirely different from that he has given in Court. Although we are convinced that at the time of occurrence the relations between the parties were not satisfactory yet it was not clear to us as to what was the immediate cause that made the accused take the extreme step of killing the deceased. In such a situation we are reluctant to confirm the death sentence.
50. For the aforegoing reasons we have no doubt in our mind that the prosecution have proved their case to the hilt. Accordingly while N substituting death sentence by life imprisonment, the appeal was dismissed as stated above. 1983 SCMR 958 P D 1976 Kar. 438 P D 1975 SC 588 PLD 1978 Lah. 1209 1976 P Cr. L J 28 1980 P Cr. L J 1087 PLD 1968 Kat.. 903 PLD 1980 Pesh. 119 1980 P Cr. L J 257 PLD 1978 SC 1