1. ' MUNAWAR ALI KHAN, J.-- This judgment will govern two appeals: Criminal Appeal No,62 of 1984 and Criminal Appeal No, 66 of 1984 and Confirmation Case No,13 of 1984. After hearing the arguments at the bar we disposed the said two appeals and the reference for confirmation of the death sentence by a short order, dated 8-11-1984 for reasons to follow. The appeal No, 66 of 1984 which had arisen from the judgment of Vth Additional Sessions Judge, Karachi, dated 15-5-1984 convicting the appellant under section 13-E, Arms Ordinance and sentencing him to R.I. For six months and fine of Rs,1,000 or in default R.I. For three months was dismissed. However in the case covered by appeal No, 62 of 1984 which arose from separate judgment of the same Vth Additional Sessions Judge, Karachi, dated 15-5-1984 whereby the appellant was convicted under section 302, P.P.C. And sentenced to death, the death sentence was substituted by life imprisonment and subject to this modification in the sentence, the latter appeal too was dismissed. In consequence of reduction in the death sentence in the last mentioned appeal, the reference for confirmation of death sentence was rejected. Following are the reasons in support of the said short order.
2. ' The case relating to the Appeal No,62 of 1984 started with the F.I.R. Lodged by complainant All Muhammad on 21-8-1981 at 3.00 p.m. At police station Orangi Town, Karachi. It is disclosed in the F.I.R. That 11/2 years prior to the murder of Mst. Bakht Zaroon wife of the complainant, the latter's daughter Mst. Mahnaz was married with accused Muhammad Laiq who is her real cousin. As the accused was unemployed and was roaming about the deceased mother-in-law often admonished him. Thereupon he felt offended. On the day of occurrence which took place on 21-8- 1981 at 11/12 noon the deceased once again scolded the accused for his being unemployed. This time the accused pulled out a knife from folds of his Shalwar and attacked the deceased causing her knife injuries on various parts of her body. The complainant's daughter Mst. Mahnaz and Mst.
3. Noor Jehan who were available at the Wardat tried to intervene but the accused held out threats of murder to them. Ultimately the accused fled away taking the knife with him. The complainant who drives rickshaw returned home at about 2.30 p.m. When he was apprised of the incident by the aforesaid two ladies. He also saw the deceased lying dead in a pool of blood. The complainant went to the police station and lodged F.I.R. As stated above.
4. ' S.I. Fateh Muhammad who was holding the charge of the Police Station recorded the F.I.R. And sent a copy thereof to the S.H.O. Ch. Muhammad Sarwar. Meanwhile he proceeded to the Wardat and inspected the same in presence of Mashirs Gul Muhammad and Amin Gul. He secured blood- stained earth from there and sealed it in a tin. He prepared Mashirnama of Wardat (Exh. 21) and inquest report (Exh. 22) of the dead body of Mst. Bakht Zaroon lying at the Wardat. The dead body was sent by him to the Abasi Shaheed Hospital, Karachi for post-mortem examination. The S.H.O.
5. Ch. Muhammad Sarwar, on his arrival at this stage, took over further investigation. He recorded statement of Gul Muhammad Mst. Mahnaz, Mst. Noor Jehan, Amin Gul, Meer Ghulam and Satbar Khan. He also recorded further statement of the complainant. On the same day the S.H.O. Arrested the accused in presence of Mashirs Muhammad Sharif and Ali Muhammad vide Mashirnama (Exh.29). The S.H.O. Brought the accused to the Police Station and interrogated him. On 24-8-1981 the accused led the police party headed by the S.H.O. To his house where in presence of Mashirs Abdul Salam and Bashir he took out a dagger, stained with blood, and produced it before the S.H.O.
6. The dagger was secured by the S.H.O. Under memo. (Exh.25). On return to the police station, the S.H.O. Registered a separate case as to recovery of dagger of prohibited blade against the accused under section 13-D, Arms Ordinance. After completion of due investigation the accused was challaned separately for the murder of Mst. Bakht Zaroon and for recovery from his possession of the prohibited dagger.
7. ' Dr. Abdul Majeed (P.W.10) of Abasi Shaheed Hospital conducted the autopsy of the dead body of Mst. Bakht Zaroon and noticed the following surface injuries:-
(1) Incised wound over right breast measuring 11/2" .x 1/2" x cavity deep.
(2) Incised wound front of left chest measuring 1" x 1/2" x cavity deep.
(3) Incised wound over left chest measuring 11/4" x 1/4" x bone deep.
(4) Incised wound left side of abdomen measuring 11/4" x 1/2" x cavity deep.
(5) Incised wound left index finger 1/4" x 1/6" x skin deep.
(6) Incised wound left breast measuring 1/4" x 1/6" x 14".
(7) Two incised wounds right side of abdomen each measuring 1" x 4" x cavity deep.
(8) Incised wound right side of abdomen measuring 1" x 1/4" x muscle deep.
(9) Incise wound right forearm measuring 21/2" x bone deep.
(10) Incised wound left leg measuring 1" x 1/2" x muscle deep.
(11) Incised wound left leg measuring 11/4" x 1/2" x muscle deep.
8. ' In the opinion of the doctor the above injuries were caused by sharp cutting weapon such as Chhuri (knife). It is further opined by him that the deceased died of shock and haemorrhage caused by the said injuries. Even the accused has not disputed the cause of the deceased's death being the injuries sustained by her. Accordingly we have no hesitation in holding that deceased Bakht Zaroon died on account of the said injuries.
9. ' The important question for our consideration however is whether the appellant/accused Muhammad Laiq was responsible for inflicting the injuries found on the person of the deceased. To prove the complicity of the accused with commission of the murder, the prosecution have produced various pieces of the evidence. The first piece of evidence is an ocular evidence comprising Mst. Mahnaz (P.W.2), Gul Muhammad (P.W.3) and Mst. Noor Jehan (P.W.9). They claim to be present at the time of commission of the murder. According to first two witnesses, who are respectively daughter and son of the deceased, while they alongwith the deceased were in the house, the accused came there. They have further stated that the deceased chided the accused, telling him that he should do some work in order to earn his livelihood. This provoked the accused who lost his balance and taking out dagger from under his Shalwar caused injuries to her. They have confirmed the presence of Mst. Noor Jehan at the time of occurrence Mst. Noor Jehan who is a next door neighbour of the deceased has stated in her evidence that as soon as she heard cries from the deceased's house, she rushed there and saw accused inflicting injuries to the deceased.
10. She also saw Mst. Mahnaz and 'Gul Muhammad at the Wardat.
11. ' The above eye-evidence is corroborated by complainant Ali Muhammad (P.W.1) and Satbar Khan (P.W.5) who went to the Wardat subsequently when they were apprised of the circumstances in which the tragedy of the deceased's murder was enacted. The complainant who happens to be the husband of the deceased was out of the house at the time of occurrence as he had gone to drive his rickshaw. On his return to his house about 21 hours after the incident, he has stated, he was informed by the above three eye-witnesses how the accused came and committed the murder of the deceased who was his mother-in-law. Similarly Satbar Khan who is husband of eye- witness Mst. Noor Jehan when returned from his duty at 3.30 p.m. He saw the dead body of the deceased lying in her house with a crowed of people collected there. He learnt from Mst. Mahnaz, Gul Muhammad and Mst. Noor Jehan who were amongst those present at the Wardat that accused Muhammad Laiq had murdered the deceased.
12. ' It would appear from the evidence of Mst. Mahnaz and Gui Muhammad that, apart from eye- witness account, they have also given evidence with regard to motive. According to them the accused being unemployed was constantly reprimanded by the deceased who was his mother- in-law that he should do some work to earn his livelihood. Their evidence shows that even on the day of occurrence he was admonished by the deceased for his going about unemployed. Their evidence on the point of motive also finds support from the complainant. The learned counsel for the appellant has severely criticized the evidence of above witnesses, contending that it is not trustworthy; firstly because it is descrepant and contradictory in tenor and secondly because the said witnesses have made shifting statements. According to the learned counsel before they were called in Court for evidence, they swore affidavits wherein they had resiled from their police statements and again when they were examined in the Court, they backed out from what they had stated in the affidavits.
13. ' We are not impressed by the argument that the above eyewitnesses and the witnesses who have corroborated them are not truthful witnesses. We have carefully gone through their evidence in Court. The contradictions appearing in their statements that have been brought to our notice are not so vital as to cast reflection on their truthful character. It was pointed out by the learned counsel for the appellant that each eye-witness has given his own timing of the incident which again does not tally with the timing given in the F.I.R. So far the F.I.R. Is concerned the time of occurrence mentioned therein is 12 noon. However according to Mst. Mahnaz the accused came into the complainant's house which is the scene of offence at about 10-11 a.m., though other two eye-witnesses have given the time of incident as being 11.00 a.m. All the three eye-witnesses are not from literate Society and therefore, the. Difference in timing of the incident disclosed by them in their evidence is rather natural. It cannot be used as material contradiction sufficient to doubt the veracity of the said witnesses. As for another contradiction with regard to Mst. Noor Jehan's presence at the Wardat, it may be pointed out that she lives next door to the deceased's house.
14. Even though she might not be available at the Vardat right from commencement of the occurrence, she must have reached there in no time. In such circumstances it is sometimes difficult to say if the witness was present from the very beginning or had come afterwards.
15. Accordingly contradiction of this kind is absolutely of no consequence and should simply be ignored.
16. ' Coming to the next argument of the learned counsel that on different occasions the witnesses have made different statements it has been noticed that it is not the argument of the learned counsel that the evidence in Court of the eye-witnesses stands in contrast with their police statements. On the contrary it was conceded by the learned counsel that the said witnesses have supported the prosecution ease as unfolded in the police statements. His argument is that both their police statements as well as statements in Court are inconsistent with what they have stated in affidavits which they had admittedly sworn subsequent to their police statements and before their evidence was recorded in Court. Admittedly the affidavits are not 164, Cr.P.C. Statements. The learned counsel for the appellant has not been able to satisfy us as to what is the evidentiary value of the affidavits. A detailed procedure is laid down in the Criminal Procedure Code which is to be followed in a Criminal trial. The affidavits of the kind relied upon by learned counsel do not appear to find mention either in the Criminal Procedure Code or in Evidence Act as being documents to be looked into or considered either as evidence or for the purpose of appraising the evidence available on the record. Thus the affidavits have absolutely no evidentiary value. Even otherwise it was not difficult for the accused who happens to be very closely related to the aforesaid eye- witnesses to have procured such favourable statements as contained in the affidavits.
17. ' The next argument of the learned counsel for the appellant was that the F.I.R. Was belated and the delay in lodging the F.I.R. Has been left unexplained. It is true that as many as three hours had intervened between the occurrence and registration of the F.I.R. Although in the words of S.1. Fateh Muhammad who had recorded the F.I.R., the scene of offence was only 3/4 furlongs from the police station. This delay is however not difficult to explain. At the time of incident, no adult male member of the house was available. Apart from two ladies Mst. Mahnaz and Mst. Noor Jehan, Gul Muhammad who was a body of hardly 13 years age had witnessed the occurrence. Of course several people had collected on cries and the F.I.R. Could have been lodged with their assistance.
18. But again there was question of involvement of the eye-witnesses closest relation. It was but natural that they did not hurry up but preferred to wait for their elder namely the complainant for mutual advice and consultation. This was not the- consultation of the kind for implicating some innocent person. The accused is admittedly their closest relative. He is married with the deceased's daughter, Mst. Mahnaz. The deceased was wife of the complainant and mother of eye-witnesses Gul Muhammad and Mst. Mahnaz. The third eye-witness, Mst. Noor Jehan is cousin of the deceased. Such close relatives could not be expected to have falsely implicated the accused. On the contrary it could be argued that they spent the intervening hours on deliberating the possibility of avoiding the implication of the accused. Obviously they could not suppress the murder and hence ultimately reported the same to police though after a great deal of hesitation. So the above kind of delay cannot be allowed to affect the truth of eye-witnesses' evidence or for that matter the evidence of complainant, and Satbar Khan who arrived some time after the occurrence.
19. ' It was next submitted by the learned counsel for the appellant that even though many independent persons had admittedly responded to the cries, yet none from them has been produced in evidence and such omission on the part of the prosecution, in the opinion of the learned counsel, creates misgivings about the genuineness of the prosecution case. We are not persuaded by these arguments for the simple reason that even those who have given evidence against the appellant cannot be regarded as partisan witnesses. As pointed out above the aforementioned eye-witnesses are not saddled with any motive for falsely implicating the accused. On the contrary the accused being their kith and kin, they have come forward to give even true evidence after a lot of hesitation. Therefore, we are convinced that their evidence can be fully trusted and evidence of such witnesses does not need any further corroboration. Again we cannot lose sight of our social environments. So-called independent witnesses even though turn up to Wardat and possess some knowledge about the incident, they have invariably been found hesitant rather reluctant in appearing in Court for evidence. In case they are somehow brought in Court, they have mostly turned hostile to prosecution. This tendency is undoubtedly condemnable and in fact it has been repeatedly deprecated by superior Courts. In view of such negative social attitudes of the people, police feel discouraged in producing such independent witnesses and even the Courts for the reason of peculiar social habits of the people have been constrained to condone such lapses on the part of police. For these reasons we do not wish to regard non- examination of any so-called independent witnesses as fatal to the prosecution case.
20. Consequently we are inclined to place implicit reliance on the ocular evidence discussed above, which is further corroborated not only by evidence of motive but also by the evidence of the complainant and Satbar Khan who had come to the wardat after the occurrence.
21. ' As for recovery of blood-stained dagger from the accused's possession, the learned counsel for the appellant has attacked this piece of evidence for variety of reasons. First of all, he submitted that the Mashir of recovery is not an inhabitant of the locality. Secondly the Mashir and the recovering police officer are at variance as to the house from which recovery was made.
22. According to the Investigating Officer the accused led to his own house and produced the dagger from there. But the evidence of the Mashir shows that the recovery was made from the house of the accused's mother-in-law. The other defect attributed to the evidence of recovery is that the accused had led the police to the recovery on the fourth day of his arrest. Lastly the learned counsel for the accused pointed out that the chemical report showing the dagger stained with human blood was not tendered in evidence and as such the recovery was of no legal value. For these reasons even the learned State counsel had chosen not to place any reliance on the evidence of recovery.
23. ' After giving due consideration to the arguments addressed at the bar, we do not feel encouraged in discarding the evidence of recovery. As for the objection that the Mashir of recovery was not a resident of locality, suffice it to say that the Mashir Abdul Salam (P.W.7) was picked up from his shop which situates at a distance of half a mile from the police station which again is shown to be 3 furlongs away from the place of Wardat. In fact no question has been put either to the Mashir or the recovering police officer to show the distance between the place from the Mashir was picked up and the house of recovery. In view of the distance between shop of the Mashir and the police station and that between the police station and the Wardat, it cannot be argued that the Mashir was not from the locality where recovery was made, particularly when the accused's house is shown to be situating very close to the house where the incident occurred. The contradiction in the evidence of Mashir and the -Investigating Officer with regard to the house where recovery was made is also not material. The Mashir who is not related to the parties had seemingly no personal knowledge as to whom the house where recovery was made belonged nor has he claimed such knowledge. When confronted in cross-examination, he was unable to give the house number and the street number where the house of recovery situated. Accordingly the Mashir's statement that the house of recovery was of accused's mother-in-law need not be given much credence.
24. ' So far delay in recovery is concerned, there is no suggestion that any coercive methods were employed against the accused during the relevant interval. When the accused was put a question with regard to recovery, all that he has said in his statement under section 342, Cr.P.C. Is that he was taken from his house and then falsely implicated. He has not specifically denied the allegation of recovery nor has he said that the dagger was actually recovered from the house of his mother- in-law and then it was foisted on him. Nor has he alleged that he was subjected to violence following his arrest. May be that after brooding for some time better sense prevailed upon the accused who then came out with truth and led the police to ultimate recovery of the dagger. No doubt delay in recovery of incrimination weapon has invariably been viewed with suspicion. But we feel that it depends upon circumstances of each individual case to say if the belated recovery is doubtful. In the instant case if the recovery is examined in the context of the totality of the circumstances we would not reject the recovery as unreliable.
25. ' Lastly something about the omission to tender the chemical report in evidence. It would appear that the chemical report which has been received from the chemical expert and is available in the case file has however not been formally produced and exhibited in evidence. Both the learned counsel are unanimous in their view that due to above lacuna the chemical report could not be taken into consideration. The learned State counsel in support of his view has even referred us to some Indian authorities which relate to the period of twenties. Much water has flowed down the bridge since then and the relevant law has undergone far-reaching changes in the meantime.
26. Even otherwise we are not bound by the Indian authorities. The learned counsel was unable to produce any authority of Pakistani Court in support of his contention. Chemical report like any other report containing expert opinion is proved under section 510, Cr.P.C. This section has been substituted by Law Reforms Ordinance, 1972. The substituted section reads as under:- "510. Report of Chemical Examiner, Serologist etc. -- Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, finger-print expert or fire-arm expert appointed by Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may, if it considers necessary in the interest of justice summon and examine the person by whom such report has been made."
27. It would appear from the above provision that it is not necessary to call the expert concerned to prove the report containing his opinion. Nor is it the requirement of above section that the expert report be tendered or produced in evidence formally through any other witness. All what is enjoined by the above provision of law is that the report produced, by the expert "may be used as evidence in any enquiry, trial or other proceeding under this code." The chemical report received from the expert has not been questioned on any other ground. It is available in the file of the case.
28. It is positive, showing that the dagger was stained with human blood. However, no question was put to the accused about the chemical report while recording his statement under section 342, Cr.P.C. Since the accused's attention was not drawn to the chemical report either by putting a question to him in course of his examination in the Court or by formally bringing the same on record, we feel inclined to the view that it cannot be used as evidence against the accused. By its exclusion from consideration there will be no evidence to the effect that the dagger recovered from accused was stained with human blood. Thus the evidentiary value of the recovery would be minimal. Nevertheless the ocular evidence discussed above coupled with the evidence of motive and that of the witnesses who reached Wardat a little late is sufficient to bring guilt home to the accused. Accordingly the prosecution have proved their case beyond shadow of doubt.
29. ' However, on the question of quantum of punishment, the learned counsel for the appellant argued that the accused resorted to violence and inflicted injuries to his mother-in--law only after the latter admonished him. Thus, his argument was that since the accused became violent under sudden provocation, he was entitled to leniency in the sentence. It appears that it is the prosecution's own case that the deceased Mst. Bakhat Zaroon who was mother-in-law of the accused had been constantly rebuking the latter for his roaming about unemployed. It is also in evidence of the prosecution that even on the day of occurrence the accused was admonished by the deceased, who told him that he should do some work to earn his livelihood. It is also clear from the evidence that it was in consequence of her admonishment that the accused took out dagger from under his Shalwar and inflicted injuries to the deceased. We are, therefore, in doubt that the accused committed the murder of the deceased under provocation. But in our opinion the provocation was not so grave that accused should have blindly indulged in causing so many injuries to the deceased, which brought about her death. Nevertheless distinction has to be drawn between the murder accused would have committed intentionally and without provocation and that he actually committed under provocation. In support of this proposition reliance has been placed on Allah Dino v. State 1984 SCMR 420 wherein the accused had cordial relations with his deceased wife until the occurrence and he got annoyed on being complained by his wife for having association with shabby characters and on refusal of his wife to accompany him to his house. It was held that sentence of life imprisonment and fine of Rs,10,000 and compensation of Rs,1,000 would meet the ends of justice.
30. ' In the case of Ibrahim v. State 1983 P Cr. L J 604 Division Bench of this Court reduced the death sentence of life imprisonment as the deceased was found repeatedly hurling abuses and insulting the accused.
31. In the instant case we are also of the view that capital punishment is not called for. Accordingly we reduced the death sentence to life imprisonment while maintaining the conviction of the accused under section 302, P.P.C. By the short order referred to above.
32. ' For the reasons stated in the foregoing paragraphs we find no merit in the appeal arising from the case under the Arms Ordinance and consequently the same was dismissed by the said short order.